Judge: Bruce G. Iwasaki, Case: 24STCV00462, Date: 2024-05-23 Tentative Ruling
Case Number: 24STCV00462 Hearing Date: May 23, 2024 Dept: 58
Judge Bruce G. Iwasaki
Department 58
Hearing Date: May 23, 2024
Case Name: Patrick
Wizmann v. Simon & Schuster, LLC, et al.
Case No.: 24STCV00462
Matter: Anti-SLAPP
Motion to Strike and Joinder
Moving Parties: Defendants
Forefront Books, LLC and Simon & Schuster, LLC
Responding
Party: Plaintiff Patrick Wizmann
Tentative
Ruling: Defendants’
special motion to strike is granted.
Background
On January 8, 2024, Plaintiff
Patrick Wizmann (“Plaintiff”) filed a complaint against Defendants Simon &
Schuster, LLC (“Simon & Schuster) and Forefront Books, LLC (“Forefront”),
alleging three causes of action for: (1) Violation of Business and Professions
Code section 17200, et seq.; (2) Violation of Business and Professions
Code section 17500, et seq.; and (3) Declaratory Relief.
The complaint alleges that in November 2023 Defendant
Forefront published Dreams Don’t Die: The Story of A Man on a Mission to
Inspire a Generation of Dreamers, by Izek Shomof (the “Book”). Defendant
Simon & Schuster is the Book’s distributor.
Plaintiff claims that in or around November 2023 he
read the promotional materials included on the Book’s dust jacket and on
Defendants’ websites and purchased the Book. Plaintiff alleges that the dust
jacket contains the following sentence describing the author, which serves as
the sole basis for this lawsuit:
“It is the memoir of a man who had every
opportunity to take unethical and often-illegal shortcuts but who instead chose
the lesser-trod path of honesty and integrity.” (Summary Sentence).
Plaintiff
alleges that in 1989, Shomof was charged with receipt of stolen property. Therefore,
Plaintiff claims, the Summary Sentence is “deceptive advertising,” by which he
was “induced into purchasing the Book and the general public is being led to
believe that Izek Shomof aka Izek Shlomof is an upstanding businessman based on
a false and/or misleading depiction of his history.” (Complaint ¶ 14.)
On
March 25, 2024, Defendant Forefront filed this Special Motion to Strike under Code
of Civil Procedure section 425.16. (“anti-SLAPP motion.”) On April 2, 2024,
Defendant Simon & Schuster filed a Joinder, and its own anti-SLAPP motion.
On May 10, 2024, Plaintiff filed an opposition, and on May 16, 2024, Defendants
filed replies.
Judicial Notice
Plaintiff requests judicial notice of: (1) Criminal Case Docket for
Municipal Court of Los Angeles, County of Los Angeles, Case No. A975496 (“Case
No. A975496”) showing the felony case filed against Izek Shomof aka Izek
Shlomof on January 20, 1989; (2) the bond information for Shomof stemming from
these charges; (3) Shomof’s 1989 plea of no contest to three charges of felony
receipt of stolen property in Case No. A975496; (4) Shomof’s 1989 sentencing
filed in Case No. A975496; (5) the sentencing report from the February 17, 1989
sentencing hearing dated February 24, 1989; (6) a copy of the book jacket for
Shomof’s book Dreams Don’t Die: The Story of a Man on a Mission to Inspire a
Generation of Dreamers; (7) a copy of Defendant Simon & Schuster, LLC’s
(“Defendant Simon & Schuster”) webpage for Izek Shomof’s book Dreams Don’t
Die: The Story of Man on a Mission to Inspire a Generation of Dreamers (the
“Book”) (https://www.simonandschuster.com/books/Dreams-Dont-Die/Izek-Shomof/9781637632413).
The request is granted solely
as to nos. 6 and 7, and otherwise denied.
Evidentiary Objections
Plaintiff’s
objections to Defendants’ evidence are overruled in their entirety.
Legal Standard
SLAPP suits “ ‘masquerade as ordinary lawsuits…[but] are
generally meritless suits brought primarily to chill the exercise of free
speech or petition rights by the threat of severe economic sanctions against
the defendant, and not to vindicate a legally cognizable right.’ ” (Castillo v. Pacheco (2007)
150 Cal.App.4th 242, 249–250, quoting Sen. Com. on Judiciary, Analysis of Sen.
Bill No. 1296 (1997–1998 Reg. Sess.) as amended May 12, 1997, pp. 1–2.) As our Supreme Court has explained, “[i]n
1992, out of concern over ‘a disturbing increase’ in these types of lawsuits,
the Legislature enacted [Code of Civil Procedure] section 425.16, the
anti-SLAPP statute. The statute authorized the filing of a special motion to
strike to expedite the early dismissal of these unmeritorious claims. To
encourage ‘continued participation in matters of public significance’ and to
ensure ‘that this participation should not be chilled through abuse of the
judicial process,’ the Legislature expressly provided that the anti-SLAPP
statute ‘shall be construed broadly.’” (Simpson v Strong-Tie, Co., Inc. v.
Gore (2010) 49 Cal.4th 12, 21 (citations omitted)(Simpson).)
“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.” (Code Civ. Proc., § 425.16, subd.
(b)(1).) The purpose of the statute is to identify and dispose of
lawsuits brought to chill the valid exercise of a litigant’s constitutional
right of petition or free speech. (§ 425.16, subd. (a); Sylmar Air
Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th
1049, 1055-1056.)
Courts employ a
two-step process to evaluate special motions to strike strategic lawsuits
against public participation (SLAPP). (Equilon Enterprises v. Consumer
Cause, Inc. (2002) 29 Cal.4th 53, 61.) First, the defendant must show
that the challenged lawsuit arises from protected activity, such as an act in
furtherance of the right of petition or free speech. (Ibid.)
From this fact, courts “ ‘presume the purpose of the action was to chill the
defendant’s exercise of First Amendment rights. It is then up to the
plaintiff to rebut the presumption by showing a reasonable probability of
success on the merits.’ ” (Ibid.) In determining whether the
plaintiff has carried this burden, the trial court considers “the pleadings,
and supporting and opposing affidavits stating the facts upon which the
liability or defense is based.” (Code Civ. Proc., § 425.16, subd. (b)(2);
see Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291 (Soukup).)
Timeliness
Plaintiff first challenges the timeliness of the motion. A
special motion to strike must be filed within 60 days from service of the
complaint, or at any later time that the court deems proper. (Code Civ. Proc.,
§ 425.16, subd. (f).)¿
Plaintiff filed his
complaint on January 8, 2024. The complaint was served on Defendant
Forefront on January 24, 2024. Sixty days from January 24, 2024 was Sunday,
March 24, 2024. Forefront’s motion was filed on March 25, 2024. However, because
Sunday is a legal holiday, the filing deadline extended to the next day, March 25, 2024. (Code Civ. Proc., § 12a; Gov. Code § 6700, subd. (a)(1).) Forefront’s
motion is timely.
Defendant Simon & Schuster was served on January 19, 2024. Sixty days from January 19, 2024 was March
19, 2024. However, the parties stipulated to extending Simon & Schuster’s
time to respond to the Complaint to April 1, 2024, which was Cesar Chavez Day,
a court holiday. Thus, the filing deadline extended to the next day,
April 2, 2024. (Code Civ. Proc., § 12a.) The motion was filed on April 2,
2024. Simon & Schuster’s motion is
timely. In
any event, the deadline is not
jurisdictional. (Lam v. Ngo (2001) 91 Cal.App.4th 832,
840.)
Plaintiff also
argues that the Motion should be denied because a hearing was not set within 30
days of the Motion’s service. (Opp., p. 4, fn. 1.) “[S]ection 425.16,
subdivision (f) ‘requires the court clerk to schedule a special motion to
strike for a hearing no more than 30 days after the motion is served if such a
hearing date is available on the court's docket, but does not require the
moving party to ensure that the hearing is so scheduled and does not justify
the denial of a special motion to strike solely because the motion was not
scheduled for a hearing within 30 days after the motion was served.’ ” (Karnazes
v. Ares (2016) 244 Cal.App.4th 344, 352.)
Plaintiff’s timeliness
objections are denied. The Court turns to the merits.
Code of Civil Procedure § 425.17(c) Exemption for
Commercial Speech
As an initial matter, Plaintiff contends that the motion is
barred under Code of Civil Procedure section 425.17, subdivision (c), which
exempts specifically defined commercial speech from the protection of the
anti-SLAPP remedies of section 425.16. Section 425.17, subdivision (c)
provides in part:
Section
425.16 does not apply to any cause of action brought against a person primarily
engaged in the business of selling or leasing goods or services … arising from
any statement or conduct by that person if both of the following conditions
exist:
(1) The statement or conduct consists of representations of
fact about that person’s or a business competitor’s business
operations, goods, or services, that is made for the purpose of obtaining
approval for, promoting, or securing sales or leases of, or commercial
transactions in, the person’s goods or services, or the statement or conduct
was made in the course of delivering the person’s goods or services.
(2) The intended audience is an actual or potential buyer or
customer . . . .
(Code Civ. Proc., § 425.17, subd. (c) (Italics added).)
The burden of proof as to the applicability of section 425.17’s
commercial speech exemption falls on the party seeking the benefit of it, in
this case, the Plaintiff. (Simpson, supra, 49 Cal.4th at p. 26.) As a statutory exception to section 425.16, section 425.17 must be
narrowly construed. (Id., at p. 22.)
Plaintiff fails to
show that section 425.17’s commercial speech exemption applies. The Summary Sentence does not contain, as subdivision (c)(1)
specifies, “representations of fact.” The
Sentence is an opinion or mere puffery (i.e. an opinion made in advertising). It
is not verifiable, and thus, not actionable. Plaintiff alleges that the Summary Sentence also appears on the Defendants’
websites. That Sentence, specifically that the author “chose the lesser-trod
path of honesty and integrity” is not a factual representation that can be
disproved.
Whether a person chooses the “path of honesty and integrity” is
subjective. The sentence is an easy to grasp metaphor, but it is not objective
or specific, and cannot be measured or verified. Moreover, it is not in direct contradiction to
Plaintiff’s allegation of the author’s criminal charge in 1989. The statement
that Shomof chose a path of honesty and integrity provides no context or time. A
venerable theme of scripture, fiction, and memoir is of an errant person who
ultimately finds redemption. The statement that a person with a flawed past chose
a different path is not capable of being proven true or false. “Socrates is a man” is a statement of fact. “Socrates
is good” is an opinion.
This is why Plaintiff’s reliance on Keimer v. Buena Vista Books, Inc.
(1999) 75 Cal. App. 4th 1220, is unavailing.
In Keimer, the Court of Appeal found that false statements on a
book jacket were “commercial speech which was not...protected by the First
Amendment.” In Keimer, publishers’ advertisements on book covers
reiterated falsely inflated investment returns by an investment club. However,
Keimer is distinguishable in at least two ways.
First, the false statements in Keimer
were very specific and easily verifiable as false. The book jacket advertising
claimed that the investment club’s actual average rate of return from 1984 to
1994 was 23.4 percent, and outperformed mutual funds and investment
professionals by a ratio of 3 to 1. In fact, the club’s returns averaged 9.1
percent, and it did not outperform other experts by 3 to 1. These measurable and verifiable
representations of fact contrast starkly with the generalized opinion that the author
at some point chose a “path of honesty.”
Second, Keimer
concerned commercial speech under the First Amendment. Keimer did
not involve an anti-SLAPP motion, and the Court did not analyze the commercial
speech exemption under Code of Civil Procedure section 425.17, subdivision (c). Our Supreme Court has observed that only a
“subset” of commercial speech is exempted by section 425.17, subsection (c) –
“specifically, comparative advertising.” (FilmOn.com Inc. v.
DoubleVerify Inc. (2019) 7 Cal.5th 133, 147.) “So
certain commercially oriented
statements will fall outside the scope of section 425.17, subdivision (c).” (Id.
at p. 148.) No comparative advertising is involved here, and for this reason as
well, the Summary Sentence is not the type of speech that loses anti-SLAPP
protection.
In
addition to failing to show a representation of fact, there is a second requirement
of section 425.17 that Plaintiff fails to address. The Summary Sentence makes
no factual representation about Defendants’ “business
operations, goods, or services.” Plainly, the Summary Sentence describes
Izek Shomof. The
Summary Sentence makes no factual
representation about Defendants’ merchandise or business. This definition of commercial speech under section 425.17 is
consistent with the United States Supreme Court’s commercial speech decisions,
each of which has involved statements about a product or service, or about the
operations or qualifications of the person offering the product or service.
(See, e.g., Rubin v. Coors Brewing Co. (1995) 514 U.S. 476 [statement of
alcohol content on beer bottle label]; Ibanez v. Florida Dept. of Business
& Professional Regulation, Bd. of Accountancy (1994) 512 U.S. 136
[statements on an attorney’s letterhead and business cards describing attorney’s
qualifications]; Virginia Pharmacy Bd. v. Virginia Consumer
Council (1976) 425 U.S. 748 [advertisements showing prices of prescription
drugs].)
Finally, beyond failing to fit under
the definition of section 425.17, subdivision (c), the Summary Sentence is
protected speech because the anti-SLAPP statute provides its own exception to
the exemption: section 425.17, subdivision (d).
Even had Plaintiff met his burden to show that the commercial speech
exemption was implicated, the Sentence at issue is excepted under section 425.17,
subdivision (d)(2) because this action is based on the “advertisement” or
“promotion” of a “literary,” “political,” or “artistic” work. Under section
425.17, subdivision (d)(2) the commercial speech exemption does not apply to “[a]ny
action against any person or entity based upon the creation, dissemination,
exhibition, advertisement, or other similar promotion of any dramatic,
literary, musical, political, or artistic work, including, but not limited to,
a motion picture or television program, or an article published in a newspaper
or magazine of general circulation.” (Code Civ. Proc., § 425.17, subd. (d)(2).)
“Books are ‘literary works’ within the
meaning of the statute; although ‘books’ are not specifically listed in
subsection (d)(2), books are similar to those things that are specifically
enumerated in the statute—'a motion picture or television program, or an
article published in a newspaper or magazine of general circulation.’” (Stutzman v. Armstrong (E.D. Cal. Sept.
10, 2013) No. 2:13-CV-00116-MCE-KJN, 20.)
Because Plaintiff fails
to meet his burden of showing that the Summary Sentence is categorically
unprotected by the anti-SLAPP statute, the Court turns to the first prong,
which concerns the showing Defendant publishers must make.
First
Prong: Whether the Lawsuit Arose from an Act in Furtherance of Protected
Activity
“[T]he only
thing the defendant needs to establish to invoke the protection of the SLAPP
statute is that the challenged lawsuit arose from an act on the part of the
defendant in furtherance of her right of petition or free speech.” (Fox
Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294,
307.)
An “act in
furtherance of a person’s right of petition or free speech under the United
States or California Constitution in connection with a public issue” includes
the following:
(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.
(Code Civ. Proc., § 425.16,
subd. (e).)
In
determining whether a cause of action arises from protected conduct, the court
focuses on the allegedly wrongful and injury-producing conduct that provides
the foundation for the claims. (Castleman v. Sagaser (2013) 216
Cal.App.4th 481, 490-491.) In making this determination, the court
considers “the pleadings, and supporting and opposing affidavits stating the
facts upon which the liability or defense is based.” (Navellier v.
Sletten (2002) 29 Cal.4th 82, 89.) “The anti-SLAPP statute should be
broadly construed and a plaintiff cannot avoid operation of the anti-SLAPP
statute by attempting, through artifices of pleading, to characterize an action
as a garden variety tort claim when in fact the liability claim is predicated
on protected speech or conduct.” (Ramona Unified School Dist. v.
Tsiknas (2005) 135 Cal.App.4th 510, 519 [internal citations omitted;
emphasis in original].)
Here, Plaintiff’s lawsuit arose from the
allegedly false Summary Sentence printed on the Book’s dust jacket. The
publisher’s conduct was “in furtherance of the exercise of . . . the
constitutional right of free speech in connection with a public issue or an
issue of public interest.” (Code Civ. Proc., § 425.16, subd. (e)(4).) This, the
so-called catch all category, is the fourth type of act in furtherance of the
right to free speech in connection with a public issue.
The third category applies to the
website advertising. Defendants’ statements on their websites were a “writing
made in a place open to the public or a public forum in connection with an
issue of public interest.” (Code Civ. Proc., § 425.16, subd. (e)(3).) “Web sites accessible to the
public . . . are ‘public forums’ for purposes of the anti-SLAPP statute.”
(Barrett v. Rosenthal (2006) 40 Cal.4th 33, 41, fn. 4.) Information posted on Defendant’s website “are accessible
to anyone who chooses to visit . . . [and] hardly could be more public.” (Wilbanks
v. Wolk (2004) 121 Cal.App.4th 883, 895; accord Barrett v.
Rosenthal (2006) 40 Cal.4th 33, 41, fn. 4.)
It cannot be doubted that the dust
jacket promotion furthered the exercise of the right of free speech. The question is whether that speech was
connected with a public issue or an issue of public interest.
Consistent with the legislative purposes of the
anti-SLAPP statute, the term “issue of public interest” is construed broadly. (Hecimovich v. Encinal School Parent Teacher
Organization (2012) 203 Cal.App.4th 450, 464.) An issue of public interest is “any issue in which the public is
interested.” (Nygard, Inc. v. Uusi–Kerttula (2008) 159 Cal.App.4th 1027,
1042.) The issue does not need to be
“ ‘significant’ ” to be covered by the anti-SLAPP statute. (Ibid.) For example, in Hecimovich, the Court of Appeal determined that a dispute between a
fourth grade basketball coach and members of a parent teacher organization
regarding parental complaints about the plaintiff’s abrasive coaching style
constituted an issue of public interest because “the safety of children in
sports” is an issue of public interest, the “suitability of [the plaintiff’s]
coaching style was a matter of public interest among the parents,” and “problem
coaches/problem parents in youth sports” is an issue of public interest. (Hecimovich,
at pp. 467–468.)
“The
definition of ‘public interest’ within the meaning of the anti-SLAPP statute
has been broadly construed to include not only governmental matters, but also
private conduct that impacts a broad segment of society and/or that affects a
community in a manner similar to that of a governmental entity.” (Damon
v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479.) A
statement concerns a “public issue” where it either “[(1)] concerned a person
or entity in the public eye [Citations], [(2)] conduct that could directly
affect a large number of people beyond the direct participants [Citations] or
[(3)] a topic of widespread, public interest.” (Rivero v. Am. Fed'n of
State, Cty., & Mun. Employees, AFL-CIO (2003) 105 Cal.App.4th 913,
924.)
Both the Book and the Summary Sentence
are matters of public interest. The topics and themes of the Book and the Summary
Sentence – Shomof’s improbable rise to success from his family’s unsavory past
– are a paean to the American Dream, and touch on important topics such as
immigration, urban development, poverty, and social problems. Such stories of
hard work and success are plainly matters of public interest, especially as
Shomof is a newsworthy real estate developer, filmmaker, and public figure who
has drawn wide media attention in numerous outlets, including The Los Angeles
Times, ABC News, Los Angeles Business Journal and NBC News – and whose life
inspired the Film. (Bornstein Decl., ¶¶ 2-7; Exs. 4 –
33; Shomof Decl., ¶ 10.)
In his Complaint, Plaintiff effectively
concedes that the Book is of public interest as it concerns a local real estate
developer and the “American dream.”
Defendants
easily meet their burden of establishing that Plaintiff’s causes of action
against Defendants arise from constitutionally protected speech.
Accordingly, the burden shifts to Plaintiff to establish that there is a
probability that he will prevail on his claims. (Code Civ. Proc., §
425.16, subd. (b)(1).)
Second Prong: Probability of Prevailing
For the second prong of the
anti-SLAPP analysis, Plaintiff bears the burden of establishing a probability
of succeeding on the merits. (See Kyle v. Carmon (1999) 71
Cal.App.4th 901, 907.) Courts employ
a “summary judgment-like” procedure, “accepting as true the evidence favorable
to the plaintiff and evaluating the defendant’s evidence only to determine
whether the defendant has defeated the plaintiff’s evidence as a matter of
law.” (Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193
Cal.App.4th 435, 444.) The Court does not assess credibility, and the
plaintiff is not required to meet the preponderance of the evidence
standard. Plaintiff need only establish that his or her claim has
“minimal merit” to avoid being stricken as a SLAPP. (Soukup, supra,
39 Cal.4th at p. 291.) 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.’ ” (Ibid.)
To set forth a claim for a violation of
Business and Professions Code section 17200, Plaintiff must establish Defendant
was engaged in an “unlawful, unfair or fraudulent business act or practice and
unfair, deceptive, untrue or misleading advertising” and certain specific acts.
(Bus. & Prof. Code, §17200.) A cause of action for unfair competition “is
not an all-purpose substitute for a tort or contract action.” (Cortez v.
Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 173.)
Section 17500 provides that it is unlawful
for a person or corporation to disseminate false or misleading
advertisements. (Bus. & Prof. Code, § 17500.) To establish a
false advertising cause of action under section 17500, Plaintiff must demonstrate
the advertisement was likely to deceive or mislead consumers. (See Brockey
v. Moore (2003) 107 Cal.App.4th 86, 98-99.)¿
“To state a claim under either the UCL or
the FAL, based on false advertising or promotional practices, ‘it is necessary
only to show that members of the public are likely to be deceived.”” (Brady
v. Bayer Corp. (2018) 26 Cal.App.5th 1156, 1173.)¿ It need not be shown
that most people reading the advertisement will be deceived, just that “it is
probable that a significant portion of the general consuming public or of
targeted consumers, acting reasonably in the circumstances, could be misled.”¿
(Lavie v. Procter & Gamble Co. (2003) 105 Cal.App.4th 496, 508.)¿
As noted, Plaintiff’s
complaint is predicated on the claim that the Summary Sentence is false and
misleading. Plaintiff argues
that he has established via admissible evidence that the Subject Sentence is at
minimum misleading and likely to deceive the public. (See RJN Exs. A-E.)
Plaintiff has not met his burden to demonstrate a probability
of prevailing on his causes of action for violation of UCL and FAL because, as
discussed above, the Summary Sentence is opinion, not a specific,
measurable assertion of fact capable of verification. The sentence Plaintiff complains of is a subjective opinion, incapable
of being verified as true or false, which amounts to non-actionable puffery or hyperbole.
Statements of opinion or “mere puffing” are generally not actionable. (Hauter v. Zogarts (1975)
14 Cal.3d 104, 111 [statement of opinion – mere ‘puffery’ – did not give rise
to liability for falsity].) Further, the criminal conviction that Plaintiff complains of occurred 35
years ago. The Sentence at issue, that Shomof chose a path of honesty and
integrity, is undefined in time. There is therefore no way to verify whether or
not it is true.
By definition, puffery cannot be the basis of a claim of
false advertising. As the Ninth Circuit
has explained, “ ‘Puffing’ is exaggerated advertising, blustering, and boasting
upon which no reasonable buyer would rely and is not actionable….” (Southland
Sod Farms v. Stover Seed Co. (9th Cir. 1997) 108 F.3d 1134, 1145
(Italics added; quoting McCarthy on Trademarks and Unfair Competition).) Because the Summary Sentence is mere
advertising opinion, Plaintiff cannot show that it is probable that a
significant portion of the general consuming public, acting reasonably, could
be misled. Accordingly, at the second
prong, Plaintiff fails to show that his false advertising and unfair
competition claims will probably succeed.
As to his third cause of action, Plaintiff has not met his
burden to demonstrate a probability of prevailing on his cause of action for
declaratory relief, as no argument or evidence has been brought to support this
cause of action.
Plaintiff’s targeting of publishers would impose an
unprecedented duty to verify the factual accuracy of every book. That is not the law. Plaintiff’s action
threatens First Amendment principles that are the core animating values of the
anti-SLAPP statute. The United States
Supreme Court recognized this danger a half century ago in Gertz v. Robert
Welch, Inc. (1974) 418 U.S. 323. In
that case, Justice Powell wrote: “Our
decisions recognize that a rule of strict liability that compels a publisher or
broadcaster to guarantee the accuracy of his factual assertions may lead to
intolerable self-censorship….The First Amendment requires that we protect some
falsehoods to protect speech that matters.”
(Id. at p. 340.)
Similarly, the Ninth Circuit reasoned:
“The plaintiffs urge this court that the publisher had a duty to
investigate the accuracy of [a book’s] contents. We conclude that the
defendants have no duty to investigate the accuracy of the contents of the
books it publishes.” (Winter v. G.P. Putnam’s Sons (1991) 938 F.2d 1033,
1037.) This suit against book publishers
is precisely the sort of case that the anti-SLAPP statute was intended to weed
out at the earliest stage.
Conclusion
Defendants’ Special Motions to
Strike are granted. The action is dismissed with prejudice, with the
Court reserving jurisdiction to make rulings under section 425.16, subdivision (c)(1).