Judge: Alison Mackenzie, Case: 24STCV05330, Date: 2024-07-10 Tentative Ruling
Case Number: 24STCV05330 Hearing Date: July 10, 2024 Dept: 55
NATURE OF PROCEEDINGS:
BACKGROUND
RODOLFO “PUEY” QUINONES, JR. (“Plaintiff”) filed a
Complaint for Defamation against Claire Contreras aka Maharlika (“Defendant”), alleging
that Defendant made defamatory statements about Plaintiff’s business and
connections with the Philippines government on her YouTube channel. See
Complaint, ¶ 31 (listing alleged statements).
Defendant brings a SLAPP motion requesting an order
striking the Complaint, or any of the alleged statements. Plaintiff opposes the
motion.
LEGAL STANDARD
As to motions made under Code of Civil Procedure
section 425.16 (SLAPP), courts first decide whether moving parties have made a
prima facie showing that the attacked claims arise from a protected activity,
including defendants’ right of petition, or free speech, under a constitution,
in connection with issues of public interest. E.g., Healy v. Tuscany Hills
Landscape & Recreation Corp. (2006) 137 Cal.App.4th 1, 5.
In determining that first step, judges are not limited
to considering pleadings, but also may consider the moving and opposing
parties’ filed evidence to ascertain the conduct or communications upon which
liability is allegedly based. All One God Faith, Inc. v. Organic and
Sustainable Industry Standards, Inc. (2010) 183 Cal.App.4th 1186, 1200
(determination of whether the SLAPP statute applies is based primarily on
reviewing the complaint, but also documents filed in opposition ‘to the extent
that they might give meaning to the words in the complaint.’”).
In determining whether the SLAPP statute applies,
courts consider “whether a defendant—through public or private speech or
conduct—participated in, or furthered, the discourse that makes an issue one of
public interest.” FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th
133, 154. An issue need not be significant one in which the public takes an
interest in order to be protected by the SLAPP statute. Nygard, Inc. v.
Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1042 (finding public interest in
prominent businessman and celebrity, among the Finnish public). “[C]onsumer
information that goes beyond a particular interaction between the parties and
implicates matters of public concern that can affect many people is generally
deemed to involve an issue of public interest for purposes of the anti-SLAPP
statute.” Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1366. The SLAPP
statute applies to defamation cases involving an issue of public interest. Hecimovich
v. Encinal School Parent Teacher Org. (2012) 203 Cal.App.4th 450, 464-65.
"Consumer information ..., at least when it
affects a large number of persons, also generally is viewed as information
concerning a matter of public interest." Wilbanks v. Wolk (2004)
121 Cal.App.4th 883, 898.
If moving parties successfully have shifted the
burden, then opposing parties must demonstrate a probability of prevailing on
the merits of the complaint. Equilon Ent., LLC v. Consumer Cause, Inc.
(2002) 29 Cal.4th 53, 67. To establish such a probability, a plaintiff must
demonstrate that the complaint is both legally sufficient and supported by a
prima facie showing of facts, which, if credited by the trier of fact, is
sufficient to sustain a favorable judgment. Morrow v. Los Angeles Unified
School Dist. (2007) 149 Cal.App.4th 1424, 1435; Navellier v. Sletten (2002)
29 Cal.4th 82, 88.
“In the context of an anti-SLAPP suit, courts must
consider the pertinent burden of proof in ascertaining whether the plaintiff
has shown a probability of prevailing” which analyses turn upon the burdens
applicable as to the elements of the particular causes of action. Ampex
Corp. v. Cargle (2005) 128 Cal.App.4th 1569, 1578.
EVIDENTIARY RULINGS AND REQUEST FOR
JUDICIAL NOTICE
The Court sustains Plaintiff’s evidentiary objections to
the Declarations of Claire Contreras, Jeffrey Lewis, Charlyn Bjerg, and Anna
Maurera.
The Court sustains Defendant’s objections to the
Declaration of Rodolfo “Puey” Quinones.
The Court grants Plaintiff’s request for judicial
notice of the complaint filed in another plaintiff’s federal case against the
same defendant. Giles v. Horn (2002) 100 Cal.App.4th 206, 228 (waiver by
no objection to judicial notice).
ANALYSIS
1. First
Step
Defendant contends that a certified translated
transcript of the video at issue proves that Defendant did not make the
statements alleged in the Complaint. E.g., Reply, 2:3-4. Alternatively,
Defendant argues that (1) the statements were made in a public forum, (2) the statements
concerning Plaintiff’s involvement in public corruption in the Philippines is a
matter of public interest, (3) and Defendant is engaged in news gathering that is
protected activity. In contrast, Plaintiff filed a declaration stating that he
personally observed the alleged statements made in the subject video. Also,
Plaintiff asserts that, as a fashion designer whose only association with
politics is that some of his clients happen to be politicians or married to
politicians, does not fall within the scope of the SLAPP statute.
“In determining
whether the first step has been established, i.e. the ‘arising from’ element of
the anti-SLAPP statute, a court must consider the pleadings and any supporting
and opposing affidavits stating the facts upon which alleged liability is based.”
Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th
435, 443-444. “A showing that a defendant did not do an alleged activity is not
a showing that the alleged activity is a protected activity.” Ibid., at
446.
When compared to the allegations and Plaintiff’s
declaration, Defendant’s certified transcript more convincingly shows that the
Complaint is not made upon any protected communications, because Defendant
never said the statements.
Therefore, the Court determines that Defendant’s
admission that the alleged statements never happened means that Defendant
failed to meet the initial burden of SLAPP step 1 to show protected statements.
Second
Step
A court need not reach the second prong of the SLAPP
analysis if the first prong (arising from protected conduct) was not satisfied.
Wang v. Wal-Mart Real Estate Business Trust (2007) 153 Cal.App.4th 790,
801. Nevertheless, the Court considers the second step of the SLAPP analysis.
The elements of a claim of a claim for defamation are:
E.g., Taus v. Loftus (2007) 40 Cal.4th 683,
720.
Defendant reasons that Plaintiff cannot satisfy the
second step of the SLAPP analysis, because (1) as a public figure Plaintiff fails
to meet his burden of proving actual malice for a defamation claim (i.e., that Defendant
harbored doubt as to truth of the statements), (2) the statements are truthful
opinions, (3) Plaintiff failed to timely request a retraction in order to
recover presumed damages, and (4) Plaintiff is libel-proof due to a bad
reputation discovered by counsel’s Google search of links on the Internet.
Public Figure – Malice
Plaintiff contends he is not a limited public figure, as
a clothing designer who sometimes sells clothes to government members.
Alternatively, Plaintiff asserts that there is no evidence that Defendant made
any effort to verify or investigate her statements, which constitutes malice.
For SLAPP motions involving a defamation claim, public
figures must prove by clear and convincing evidence that statements were made
with knowledge of falsity, or reckless disregard for truth. Ampex Corp. v.
Cargle (2005) 128 Cal.App.4th 1569, 1577. Dicta in an opinion indicates
that parties opposing SLAPP motions need not evidence malice, where parties’
being a public figure is not established as a matter of law or is in dispute.
See Grewal v. Jammu (2011) 191 Cal.App.4th 977, 988, fn.7.
A limited public figure (one voluntarily injected, or
drawn into, a public controversy for a limited range of issues) suing for
defamation must show the defendant’s knowledge of falsity, or reckless
disregard for truth to the extent the communication relates to the figure’s
role in a public controversy. McGarry v. Univ. Of San Diego (2007) 154
Cal.App.4th 97, 113-114 (McGarry). See also Khawar v. Globe Internat.
(1998) 19 Cal.4th 254, 263, 265 (involuntary limited public figure must have
purposefully engaged in activity inviting criticism, or have acquired
substantial media access in relation to the controversy); Annette F. v.
Sharon S. (2004) 119 Cal.App.4th 1146, 1164 (“possible to become a public
figure by being drawn into a particular ‘public controversy’ without purposeful
action … ‘for an individual who … has acquired such public prominence in
relation to the controversy as to permit media access sufficient to effectively
counter media-published defamatory statements.’”); Christian Research
Institute v. Alnor (2007) 148 Cal.App.4th 71, 88, 90 (gross negligence is
not actual malice, but instead defendants must have had knowledge of falsity or
doubt of the truth, and failures to investigate must be purposeful avoidance of
truth or of knowledge of facts which could confirm probable falsity); Collins
v. Waters (2023) 92 Cal.App.5th 70, 80 (“In the context of a special motion
to strike,… plaintiffs … must establish only a probability they can produce
clear and convincing evidence of actual malice.”).
Here, the Court determines that that Plaintiff is at
least an involuntary, limited public figure involved in the clothing designing business
in connection with high-ranking government officials, and that Defendant acted
with malice in the sense of Defendant’s lack of effort to obtain information as
to the truth or falsity of the asserted facts that Defendant declares she never
made.
Therefore, the Court concludes that Plaintiff
satisfied the burden to show sufficient merit of the claim for defamation
against a limited public figure.
Truthful Opinions
Plaintiff contends that admissible evidence shows the
falsity of statements of fact, via his declaration. See Plaintiff’s decl. ¶¶
8-13.
Opinions are protected communications unless a
reasonable fact finder could find, under the totality of circumstances, that
they imply a provably false assertion of fact. Del Junco v. Hufnagel
(2007) 150 Cal.App.4th 789, 798. See also Paterno v. Superior Court
(2008) 163 Cal.App.4th 1342, 1356 (in determining opinion, “question is whether
a reasonable fact finder could conclude the published statement declares or
implies a provably false assertion of fact.”); Krinsky v. Doe 6 (2008)
159 Cal.App.4th 1154, 1175 (comments impliedly based upon undisclosed facts,
may constitute actionable assertions of fact and not pure opinion, depending
upon all of the circumstances, but the particular comments such as
"crook" found to constitute mere opinion in the context of
"juvenile name-calling"); Wong v. Tai Jing (2010) 189
Cal.App.4th 1354, 1372 (in determining libel, judges consider insinuations and
implications reasonably drawn from the communications).
Here, the Court decides that, under all the alleged,
and evidenced, circumstances, Plaintiff met the burden to prove that the
statements containing some opinions are actionable, because the whole context
of the video contains statements or implications of asserted facts made in
support of the opinions that Plaintiff has declared are false.
Hence, the Court concludes that Plaintiff met the
burden to show actionable opinions.
Timely Retraction and Damages
Plaintiff argues that slander per se is actionable
without proof of special damage, and general damages are presumed as a matter
of law (citing Moranville v. Aletto (1957) 153 Cal.App.2d 667, 672).
Alternatively, Plaintiff states that both damage types are shown by Plaintiff’s
declaration.
Case law is fairly clear that YouTube postings are not
covered by Civil Code Section 48a. “A close examination of the cases reveals
the scope of section 48a is determined by the type of media involved, and not
upon specific content. Therefore we cannot conclude the statute only applies to
visual and sound broadcasting which is engaged in the business of rapid and
immediate dissemination of the news. The language of the statute clearly
applies to all types of television shows.” Kalpoe v. Superior Court
(2013) 222 Cal.App.4th 206, 217. “It is not the intent of the Legislature that
Section 48a of the Civil Code should apply to periodicals that publish at
longer than weekly intervals, nor is it the intent of the Legislature that
Section 48a of the Civil Code should apply to casual postings on a social
networking Internet Web site, chat room, electronic bulletin board, discussion
group, online forum, or other related Internet Web site.” Stats. 2015, ch. 343,
§ 1. “The correction statute provides that in an action for damages for the
publication of a libel in a newspaper or of a slander by radio broadcast, the
plaintiff, in order to be permitted to seek more than special damages, must
serve … a written notice specifying the statements claimed to be libelous and
demanding that they be corrected. This notice and demand must be served within
20 days after knowledge….” 6A Cal. Jur. 3d Assault and Other Willful Torts §
240.
The Court concludes as a matter of law that Civil Code
Section 48a does not apply to YouTube videos of livestreams.
Therefore, Plaintiff meets the burden to show
recoverability of at least presumed, general damages, notwithstanding the Court
sustaining evidentiary objections to proffered proof of damages such as to
Plaintiff’s business. Ultimately, that means that the defamation claim does not
fail for lack of damages. See, e.g., McGarry
v. Univ. Of San Diego (2007) 154 Cal.App.4th 97, 112
(statements that charge directly without a need for explanation are libelous
per se, as to which pleading and proving special damages is not required).
Libel-Proof Evidence
Plaintiff states that California law does not
recognize any “libel proof” doctrine. Further, Plaintiff contends that
counsel’s declaration is not competent evidence of Plaintiff’s reputation.
Defendant relies upon cites to nongoverning federal
cases in asserting a libel-proof defense. Federal case law is not binding upon
California courts and may be only persuasive in some circumstances. Alameida
v. State Personnel Bd. (2004) 120 Cal.App.4th 46, 61. Additionally,
Defendant’s attorney declaration, setting forth Google search results, does not
constitute competent evidence of Defendant’s reputation.
In sum, the Court reasons that there is no libel-proof
defense applicability here.
CONCLUSION
Therefore, the Court denies the motion based upon
Defendant’s burden failure as to step 1, or alternatively, Plaintiff’s burden
success as to step 2.