Judge: Curtis A. Kin, Case: 22STCV09441, Date: 2022-10-13 Tentative Ruling
Case Number: 22STCV09441 Hearing Date: October 13, 2022 Dept: 72
SPECIAL MOTION TO STRIKE (ANTI-SLAPP)
Date: 10/13/22
(9:30 AM)
Case: Edward H. Livingston, M.D. v.
American Medical Assn. (22STCV09441)
TENTATIVE RULING:
Defendant American Medical Association’s Motion to Strike
Plaintiff’s First Amended Complaint Pursuant to CCP § 425.16 is GRANTED IN PART.
The Court employs a two-prong process in ruling on a CCP
section 425.16 motion to strike. “First,
the court decides whether the defendant has made a threshold showing that the
challenged cause of action is one arising from protected activity.” (Vargas
v. City of Salinas (2009) 46 Cal.4th 1, 16, citations omitted.) “If the
court finds such a showing has been made, it then determines whether the
plaintiff has demonstrated a probability of prevailing on the claim.” (Ibid.)
The plaintiff demonstrates a probability of prevailing by showing 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. (Hutton v. Hafif (2007) 150 Cal. App.4th 527,
537, citations and quotations omitted.) “The defendant has the burden on the
first issue; the plaintiff has the burden on the second.” (Gallimore v.
State Farm Fire & Casualty Ins. Co. (2002) 102 Cal. App. 4th
1388, 1396.)
I.
PROTECTED ACTIVITY
CCP § 425.16(e)(3) and (e)(4) provide that “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 “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” are amenable to a special motion to strike.
Plaintiff Edward Livingston, M.D.’s action is based on
defendant American Medical Association’s purportedly defamatory statements
concerning a podcast titled “Structural Racism for Doctors – What is It?”
(“Podcast”) in which plaintiff served as narrator and interviewer. (FAC ¶ 10.)
The Podcast was hosted by the Journal of the American Medical Association
(“JAMA”) on February 23, 2021. (FAC ¶ 10; Fontarosa Decl. ¶ 4.). JAMA is
published by defendant American Medical Association (“AMA”). (FAC ¶ 10;
Fontarosa Decl. ¶ 10.) Plaintiff alleges that he was wrongfully terminated as
Deputy Editor for Clinical Content for JAMA based on a false characterization
of the Podcast. (FAC ¶¶ 8, 17.)
The statements characterized as defamatory are the
following:
A.
On March 27, 2021, Dr. Aletha Maybank, Senior Vice
President and Chief Health Equity Officer for defendant AMA, posted a tweet on
Twitter in relation to the Podcast that said, “Is there a better word than
racism? . . . There may be. How about ‘white supremacy’?” (Maybank Decl. ¶ 5; FAC
¶ 20(a).) (“Statement No. 1”)
B.
On March 31, 2021, Maybank “participated in a
social media discussion where she failed to dispute and encouraged participants
to accept her interpretation of the Podcast that denied the existence of
structural racism in medicine.” (FAC ¶ 20(b).) (Statement No. 2”)
C.
On April 21, 2021, Maybank, AMA director Dr.
Fernando DeMaio, and others co-authored an article in Time magazine entitled
“The World’s Leading Medical Journals Don’t Write About Racism. That’s a
Problem.” (FAC ¶ 19; Maybank Decl. ¶ 6.) The article discussed “the ways the
U.S. health care industry avoids even talking about, let alone addressing,
racism.” (Maybank Decl. ¶ 6.) The article stated: “Perhaps most notably, JAMA—a
journal recently thrust into public discourse after its editor-in-chief was
placed on administrative leave for sponsoring a podcast that denied the
existence of structural racism in medicine . . . .” (Maybank Decl. ¶ 6; FAC ¶
19.) (“Statement No. 3”)
D.
Dr. Phil Fontarosa, Executive Editor of JAMA,
“repeatedly and consistently up to December, 2021, if not later, conversed,
stated and communicated to multiple members of the medical community outside,
separate and apart from any ‘official proceeding authorized by law’ or
otherwise, and a new group of readers, that the Podcast was an act committed
which is as serious as Plaintiff committing medical malpractice or scientific
research misconduct justifying Dr. LIVINGSTON' s forced resignation.” (FAC ¶
20(c).) (“Statement No. 4”)
E.
On March 4, 2021, Maybank posted the following
tweet concerning the Podcast: “JAMA has complete editorial independence from
AMA so this would not come to me or my team for review) The podcast/tweet
are/were wrong, absolutely appalling & at its very core is a demonstration
of structural & institutional racism. I am furious. It's harmful for
everyone the field of medicine & even more so harmful for my Black,
Indigenous, Latinx, Asian & other historically marginalized colleagues,
friends, & families. It is harmful for my team & all of the other folks
within the AMA who have been fighting hard & daily against racism &
white supremacy to change culture, structures, & norms. I knew full well
that coming to this space to lead this work was in no way going to be easy,
just only necessary. I am clear this impacts the credibility of the AMA &
the Center for Health Equity.” (Maybank Decl. ¶ 4; FAC ¶ 13.) (“Statement No.
5”)
F.
Plaintiff alleges the AMA continued the false narrative
from the March 4, 2021 tweet by providing national news organizations with
false and defamatory information. (FAC ¶ 14.) (“Statement No. 6”)
G.
On March 4, 2021, Dr. James Madara, Chief
Executive Officer of the AMA, published a statement to AMA members on AMA’s
website in relation to the Podcast. Madara stated, “The AMA’s House of
Delegates passed policy stating that racism is structural, systemic, cultural,
and interpersonal and we are deeply disturbed—and angered—by a recent JAMA
podcast that questioned the existence of structural racism and the affiliated
tweet that promoted the podcast and stated ‘no physician is racist, so how can
there be structural racism in health care?’ JAMA has editorial independence
from AMA, but this tweet and podcast are inconsistent with the policies and
views of AMA and I’m concerned about and acknowledge the harms they have
caused. Structural racism in health care and our society exists and it is
incumbent on all of us to fix it.” (Madara Decl. ¶ 9; FAC ¶ 15.) (“Statement
No. 7”)
H.
On March 10, 2021, Dr. Madara published an
article on the AMA website, which stated: “We have heard from many in our
physician community and beyond this past week who expressed anger, hurt,
frustration and concern about a harmful podcast that was posted on the JAMA
Network™ and the AMA Ed Hub™, along with the tweet that promoted it. They both
minimized the effects of systemic racism in health care and questioned its
profound impact on millions of people across our country . . . . JAMA Editor-in-Chief Howard Bauchner, MD . .
. asked for, received and accepted the resignation of Deputy Editor for
Clinical Reviews and Education Edward H. Livingston, MD, who hosted the podcast
. . . .” (Madara Decl. ¶ 9; FAC ¶ 15.) (“Statement No. 8”)
I.
On March 4, 2021, Dr. Howard Bauchner, JAMA’s
Editor in Chief, posted a tweet on defendant’s Twitter Account, which stated:
“On February 24, 2021 JAMA tweeted about a recently posted podcast discussing
structural racism in medicine. The language of the tweet, as well as portions
of the podcast, do not reflect my commitment as editorial leader of JAMA and
JAMA Network to call out and discuss the adverse effects of injustice,
inequity, and racism in medicine and society as JAMA has done for many years.”
(Fontarosa Decl. ¶ 6; see also FAC ¶ 21 [“Further, the AMA was informed
by comments made by DR. BAUCHNER after publication of the Podcast were
defamatory toward DR. LIVINGSTON….) (“Statement No. 9”)
J.
On March 8, 2021, Dr. Bauchner stated in a
podcast: “The podcast on structural racism based on the discussion between Dr.
Ed Livingston and Dr. Mitchell Katz has been withdrawn. Comments made in the
podcast were inaccurate, offensive, hurtful, and inconsistent with the
standards of JAMA….” (Fontarosa Decl. ¶ 7; see also FAC ¶ 21.)
(“Statement No. 10”)
K.
On March 16, 2021, Dr. Bauchner stated in a
YouTube livestream titled “Structural Racism in Medicine and Health Care,” “On
February 24 of this year, JAMA tweeted about a recently posted podcast
discussing structural racism in medicine…. The comments made in the podcast
were inaccurate, offensive, hurtful, and inconsistent with the standards of
JAMA.” (Fontarosa Decl. ¶ 8; see also FAC ¶ 21.) (“Statement No. 11”)
At issue here is whether defendant made its written and oral
statements, Statement Nos. 1-11, “in connection with an issue of public
interest” under CCP § 425.16(e)(3). The context of a statement, including the
identity of the speaker, the audience, and the purpose of the speech, is
relevant in determining whether the statement was made to further free speech
in connection with a public issue. (FilmOn.com Inc. v. DoubleVerify Inc.
(2019) 7 Cal.5th 133, 140.)
With respect to the identity of the speaker, defendant is a
national association of physicians that promotes health equity on a national
scale, including by “denounc[ing] racism as an urgent threat to public health”
and “pledging action to confront systemic racism.” (Madara Decl. ¶¶ 2, 4.)
Defendant has published articles in JAMA indicating that healthcare inequities
“contributed to disproportion[ate] infections, hospitalizations and deaths
throughout the COVID-19 pandemic for people of color.” (Madara Decl. ¶ 6.)
Defendant has issued statements apologizing for its prior exclusion of African
Americans from membership and contribution to Black-White disparities in
healthcare. (Madara Decl. ¶ 3.)
With respect to the audience, Statement Nos. 1 through 11
were published on Twitter (Statement Nos. 1, 5, 9), social media platforms
(Statement No. 2), Time magazine’s website (Statement No. 3), the AMA website
(Statement Nos. 7, 8), a podcast (Statement No. 10), and YouTube (Statement No.
11), as well as provided to national news organizations like the New York
Times, CNN, and WebMD (Statement No. 6). “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.) Accordingly, it is undisputed
that Statement Nos. 1-11 concern statements “made in a place open to the public
or a public forum” under CCP § 425.16(e)(3). (The method of publication for
Statement No. 4 is unclear, but for reasons stated below, is subject to
striking.)
With respect to the purpose of the speech, Statement Nos. 1
through 11 concern the issue of structural racism in health care. Defendant
defines “structural racism” as the “structural and legalized system that
results in differential access to goods and services, including health care
services.” (“AMA statement on JAMA podcast and tweet,” found at https://www.ama-assn.org/press-center/press-releases/ama-statement-jama-podcast-and-tweet
and cited in Madara Decl. ¶ 9.) “[R]acism is undoubtedly an issue of public
interest.” (Bernstein v. LaBeouf (2019) 43 Cal.App.5th 15, 24.)
Based on the AMA’s prominence in speaking against racial
inequity in healthcare and publication of its statements concerning structural
racism in healthcare in forums accessible to the public, defendant demonstrates
that the statements at issue are in furtherance of free speech in connection
with a public issue and therefore constitute protected activity under CCP § 425.16(c)(3).
Also at issue is whether defendant’s conduct of terminating
plaintiff’s employment is “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,” as set forth in
CCP § 425.16(c)(4). Here, defendant’s selection of individuals who promote
racial equity in healthcare is conduct “in connection with a public issue or an
issue of public interest.” (Symmonds v. Mahoney (2019) 31 Cal.App.5th
1096, 1109 [“[D]efendants have made a prima facie showing sufficient to
establish that Mahoney's music and concerts were of interest to the public…. In
sum, we conclude that Mahoney's decision to terminate Symmonds and replace him
with another drummer constituted protected conduct for purposes of the first
step of anti-SLAPP analysis”]; Hunter v. CBS Broadcasting Inc. (2013)
221 Cal.App.4th 1510, 1527 [“[W]eather reporting is a matter of public
interest. CBS's decisions regarding who would present those reports to the
public during its broadcasts was necessarily ‘in connection’ with that public
issue”].) Accordingly, defendant’s termination of plaintiff’s employment is
also protected activity under CCP § 425.16(c)(4).
Regardless of whether Statement Nos. 1-11 and the
termination of plaintiff’s employment have the effect of inaccurately
characterizing plaintiff as a racist or bigot, they constitute protected
activity under CCP § 425.16(c)(3) and (c)(4) because they concern a public
issue.
Defendant satisfies the first prong of the anti-SLAPP analysis.
The burden then shifts to plaintiff to
demonstrate a probability of prevailing on the merits.
II.
PROBABILITY OF PREVAILING
“If the defendant carries its burden [on a special motion to
strike under CCP § 425.16], the plaintiff must then demonstrate its claims have
at least ‘minimal merit.’” (Park v. Board of Trustees of California State
University (2017) 2 Cal.5th 1057, 1061.)
A.
First (Wrongful Termination), Fifth
(False Light Invasion of Privacy) and Sixth (Public Disclosure of Private
Facts) Causes of Action
With respect to the first cause
of action for wrongful termination in violation of public policy, plaintiff
alleges that his termination violated the First and Fourteenth Amendments of
the United States Constitution and Article I, Sections 1, 2, 3, 7, and 26 of
the California Constitution. (FAC ¶ 23.) The First Amendment and Article I,
Sections 2 and 3 pertain to free speech. The Fourteenth Amendment and Article
I, Section 7 pertains to due process. Article 1, Section 1 pertains to the
right to privacy. Article I, Section 26 states that the provisions of the
California Constitution are mandatory and prohibitory.
Liability for violations of state
and federal constitution rights to free speech and due process can only be
imposed on governmental actors, not private actors. (Manhattan Community
Access Corporation v. Halleck (2019) 139 S.Ct. 1921, 1926 [“The Free Speech
Clause of the First Amendment constrains governmental actors and protects
private actors”]; Shelley v. Kraemer (1948) 334 U.S. 1, 13 [Fourteenth
Amendment “erects no shield against merely private conduct, however
discriminatory or wrongful”]; Golden Gateway Center v. Golden Gateway
Tenants Assn. (2001) 26 Cal.4th 1013, 1031 [“[A]rticle I, section 2,
subdivision (a) only protects against state action”]; Homestead Savings v.
Darmiento (1991) 230 Cal.App.3d 424, 431 [“The threshold question in this
case as in any due process case, federal or state [citation] is whether the
challenged conduct involves state action”].)
Plaintiff presents no evidence
that defendant is a governmental actor. Accordingly, plaintiff may not state a
cause of action for wrongful termination based on a violation of the First
Amendment and Article I, Sections 2 and 3, pertaining to free speech, or the
Fourteenth Amendment and Article I, Section 7, pertaining to due process.
Plaintiff contends Article I,
Section 1 of the California Constitution, which pertains to the right to
privacy, is an inalienable right which may not be violated by private parties.
(Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 82, citing
Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 18, 26.)
The elements of state constitutional cause of action for invasion of privacy are
“(1) a legally protected privacy interest; (2) a reasonable expectation of
privacy in the circumstances; and (3) conduct by defendant constituting a
serious invasion of privacy.” (Hill v. National Collegiate Athletic Assn.
(1994) 7 Cal.4th 1, 39-40.)
With respect to the first
element, plaintiff maintains that the characterization of plaintiff as a
“racist” and “white supremacist” violated a legally protected privacy interest.
(Opp. at 20: 19-23.) “Legally recognized privacy interests are generally of two
classes: (1) interests in precluding the dissemination or misuse of sensitive
and confidential information (“informational privacy”); and (2) interests in
making intimate personal decisions or conducting personal activities without
observation, intrusion, or interference (“autonomy privacy”). (Hill, 7
Cal.4th at 35.) However, the purported defamation of plaintiff implicates
neither informational nor autonomy privacy. Plaintiff served as narrator and
interviewer of the Podcast, which was designed for public consumption as its
purpose was to “bring to the attention of the medical community that racism is
a serious problem and to explain to those who do not understand what
‘structural racism’ is.” (FAC ¶¶ 10-12.) The Podcast was posted by JAMA
employees and became publicly available on the JAMA website. (Fontarosa Decl.
¶¶ 4, 7.) Accordingly, the goal of the Podcast was the opposite of preventing “the
dissemination or misuse of sensitive and confidential information.” (Hill,
7 Cal.4th at 35.) Because the Podcast was publicly available, it did not
implicate any “intimate personal decision” or “personal activity.” (Id.)
While public criticism of the Podcast may have damaged plaintiff’s reputation,
this affects a different right than any right to informational or autonomy
privacy.
With respect to the second
element, plaintiff did not have any expectation of privacy, as the Podcast was
distributed publicly.
With respect to the third
element, because the purported defamatory statement concerning the Podcast and plaintiff
did not implicate any legally protected privacy interest, plaintiff cannot claim
conduct from defendant seriously invaded any privacy interest.
Accordingly, plaintiff fails to
demonstrate a probability of prevailing on the merits as with respect to
Article I, Section 1 of the California Constitution.
Because plaintiff does not
demonstrate a probability of prevailing on the merits with respect to any state
constitutional provision, plaintiff also fails to demonstrate any probability
of prevailing with respect to Article I, Section 26 of the California
Constitution, which is derivative in nature.
For the foregoing reasons,
plaintiff fails to demonstrate a probability of prevailing on the merits as to
the first cause of action for wrongful termination in violation of public
policy.
With respect to the fifth cause
of action for false light invasion of privacy and sixth cause of action for
public disclosure of private facts, these causes of action are based on a right
of privacy in Article I, Section 1 of the California Constitution and the First
and Fourteenth Amendments of the United States Constitution. (FAC ¶¶ 82, 83,
113, 114.) Because plaintiff fails to demonstrate a probability of prevailing
on the merits as to the first cause of action, plaintiff fails to demonstrate a
probability of prevailing on the merits as to the fifth and sixth causes of
action.
B.
Second (Slander), Third (Libel), and Fourth
(Intention Infliction of Emotional Distress) Causes of Action
Statement Nos. 5, 7, 8, 9,
10 and 11. With respect to the
second cause of action for slander and the third cause of action for libel,
defendant contends that statements made prior to March 17, 2021 are time-barred.
The statute of limitations for an action for defamation, either written (libel)
or oral (slander), is one year. (CCP § 340(c).) A cause of action for
defamation accrues upon “‘first general distribution of the publication to the
public’… regardless of when the plaintiff secured a copy or became aware of the
publication.” (Shively v. Bozanich (2003) 31 Cal.4th 1230, 1245-46; see
also Civ. Code § 3425.3.)
This action was filed on March
17, 2022. Accordingly, under a one-year statute of limitations, the statements
made prior to March 17, 2021—Statement Nos. 5, 7, 8, 9, 10, and 11—are outside
the statute of limitations and therefore not actionable. Plaintiff presents no
argument indicating why Statement Nos. 5, 7, 8, 9, 10, and 11 are actionable.
Accordingly, the allegations based on Statement Nos. 5, 7, 8, 9, 10, and 11 are
subject to striking.
Statement Nos. 2, 4, and 6. Concerning Statement Nos. 2, 4, and 6 and
any claim they are libelous, “‘[t]he general rule is that the words
constituting an alleged libel must be specifically identified, if not pleaded
verbatim, in the complaint.’ [Citation].” (Medical Marijuana, Inc. v.
ProjectCBD.com (2020) 46 Cal.App.5th 869, 888.) Concerning Statement Nos.
2, 4, and 6 and any claim they are slanderous, “‘the disparagement set forth in
the complaint must be sufficiently close to the actual words proved to acquaint
a defendant with what he must defend against.’ [Citation.]” (Id. at
894.) Because the issues on an anti-SLAPP are framed by the pleadings,
inadequately pled causes of action based on defamation are subject to striking.
(Id. at 883 [“Because the issues to be determined in an anti-SLAPP
motion are framed by the pleadings, we will not ‘insert into a pleading claims
for relief based on allegations of activities that plaintiffs simply have not
identified….’ [Citation]”].)
With respect to Statement No. 2, plaintiff does not state
whether the statements were written or oral. Moreover, plaintiff does not
identify the words written or spoken by Maybank that constitute libel or
slander. With respect to Statement No. 4, plaintiff does not state whether the
statements were written or oral. Plaintiff also does not identify the date of
each purportedly defamatory statement the medium by which such statements were
made. With respect to Statement No. 6 concerning the “false and defamatory information”
that defendant allegedly provided to national news organizations, plaintiff
does not state the content of the statements and whether the statements were
written or oral. Plaintiff also does not identify the date of each purportedly
defamatory statement the medium by which such statements were made. Plaintiff’s declaration in support of the
opposition does not offer any additional clarity with respect to Statement Nos.
2, 4, and 6. Accordingly, allegations based on Statement Nos. 2, 4, and 6 are
subject to striking.
Statement Nos. 1 and 3. As for Statement Nos. 1 and 3, defendant
contends that these statements are nonactionable opinions. Although statements of opinion are
constitutionally protected, opinions implying a false assertion of fact are
not. (GetFugu, Inc. v. Patton Boggs LLP (2013) 220 Cal.App.4th 141, 156. “[E]xpressions of opinion may imply an
assertion of objective fact, and a statement that implies a false assertion of
fact, even if couched as an opinion, can be actionable.” (McGarry v. University of San Diego
(2007) 154 Cal.App.4th 97, 112, citing Milkovich v. Lorain Journal Co.
(1990) 497 U.S. 1, 18-19.) “To determine whether a statement is actionable fact
or nonactionable opinion, courts use a totality of the circumstances test of
whether the statement in question communicates or implies a provably false
statement of fact.” (McGarry, 154 Cal.App.4th at 113.) The “totality of
circumstances” test includes an examination of the language and context of the
statement. (Id.)
Statement No. 1 was a
Tweet concerning plaintiff’s Podcast, posted under the heading “new
analysis of #JAMA podcast and tweet on Structural Racism.” It contains the following language: “Is there
a better word than racism? . . . There may be. How about ‘white supremacy’?”
(Maybank Decl. ¶ 5.) In the tweet, Maybank also links an article entitled “How
Whiteness Works: JAMA and the Refusals of White Supremacy” and endorses this
article as an “[e]xcellent analysis & piece.” That article is severely critical of the
Podcast, but its criticisms are non-actionable opinions. (See Gravlee, Clarence C. at http://somatosphere.net/2021/how-whiteness-works.html
[“If your goal is to understand what structural racism is and how it harms
health, look elsewhere. The podcast’s errors are so naive or absurd—No
physician is racist? No Black or Hispanic people experience discrimination
because that would be illegal?—that it doesn’t merit a rebuttal”].) Thus, Maybank’s tweet about racism and white
supremacy in reference to the article she endorses is similarly a nonactionable
opinion. (See Overhill Farms,
Inc. v. Lopez (2010) 190 Cal.App.4th 1248, 1262 [“[G]eneral statements
charging a person with being racist, unfair, or unjust—without more . . .
constitute mere name calling and do not contain a provably false assertion of
fact”].)
With
respect to Statement No. 3, defendant contends that Maybank never referenced
plaintiff in the article. (Maybank Decl. ¶ 6.) However, the Podcast is
mentioned, and a trier of fact could find that Maybank’s statements refer to
plaintiff. As for whether Statement No. 3 is protected opinion or a provable
assertion of fact, Maybank, as one of the authors, states that the “podcast . .
. denied the existence of structural racism in medicine.” (Maybank Decl. ¶ 6.)
Upon
hearing or reading a transcript of the Podcast at issue (see FAC Ex. B;
Livingston Decl. Ex. 3), a reasonable trier of fact could conclude plaintiff
does not actually deny the existence of structural racism in healthcare.
Plaintiff does question whether racial inequities, such as pollution and
education, are more a function of socioeconomic status as opposed to race.
Plaintiff also states that he thinks “taking racism out of the conversation
would help” because some people who do not view themselves as racist are “turned
off by the whole structural racism phenomenon.”
But, a trier of fact could find that plaintiff does not deny that structural
racism exists in medicine. Plaintiff asked the guest on the Podcast, “So,
asking you a hard question, what do we do to end structural racism or try to
address it the best we can?” Plaintiff also stated, “The racism part means that
in those poor areas there tends to be a disproportionate share of certain kinds
of races, such as blacks or Hispanics. They aren’t there because they’re not
allowed to buy houses in better neighborhoods or they can't get a job because
they're black or Hispanic, That would be illegal. But disproportionality does
exist.” Indeed, plaintiff even posits
that “[s]tructural racism is an unfortunate term to describe a very real
problem.” A reasonable trier of fact
could thus find that plaintiff advocated for a nuanced discussion concerning
structural racism (or, conversely, had a naïve understanding of structural
racism), but did not deny its existence.
Thus, plaintiff has sufficiently demonstrated that Maybank may have made
a demonstrably false statement about him.
For the
foregoing reasons, with respect to Statement No. 3, plaintiff demonstrates that
a claim of defamation based thereon may have “minimal merit.” Accordingly, the third cause of action for
libel survives and the fourth cause of action for intentional infliction of
emotional distress based on libel survives. However, because Statement No. 3 was
written, not spoken, plaintiff fails to demonstrate a probability of prevailing
on the merits as to the second cause of action for slander.
III.
ALLEGATIONS TO BE STRICKEN
For the reasons stated above, the Motion is GRANTED IN
PART.
“Allegations of protected activity supporting the stricken
claim are eliminated from the complaint, unless they also support a distinct
claim on which the plaintiff has shown a probability of prevailing.” (Baral
v. Schnitt (2016) 1 Cal.5th 376, 396.)
Accordingly, the following allegations are STRICKEN from the First
Amended Complaint:
Facts Common to All Causes of Action
First Cause of Action
Second Cause of Action
Fifth Cause of Action
Sixth Cause of Action