Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

MOVING PARTY: Defendant Heather McDonald 

 

RESPONDING PARTY: Plaintiff Gina Bisignano 

 

 

BACKGROUND 

 

  Plaintiff Gina Bisignano has sued various defendants for their coverage of her provocative statements during a COVID-19 lockdown protest and her participation in the protests at the United States Capitol on January 6, 2021.  Plaintiff claims Defendants’ actions resulted in the demise of her previously “thriving” beauty salon business in Beverly Hills.   

One of those defendants is Heather McDonald, a comedian and podcaster.  McDonald interviews celebrities and covers reality TV and other entertainment news.  In May 2021, McDonald hosted another defendant, Josh Flagg, on her podcast, “Juicy Scoop”.  McDonald and Flagg discussed Flagg’s interview of Bisignano after she was filmed calling a COVID 19 counter-protestor a “faggot” and the person filming her a “Nazi” and a “new world order Satanist”.  McDonald and Flagg also discussed Bisignano’s arrest for storming the Capitol, with Flagg claiming that Bisignano called him to ask for money while she was in jail.  During the interview, McDonald and Flagg referred to Bisignano as a “crazy lady,” a “Qanon person” and a “terrorist.”     

The operative complaint alleges eight causes of action for (1) misappropriation of likeness or identity, (2) violation of California Civil Code §3344, (3) invasion of privacy false light, (4) business defamation, (5) tortious interference with business relations, (6) tortious interference with contractual relations, (7) unfair business practices, and (8) declaratory relief.     

This hearing is on Defendant Heather McDonald’s special motion to strike pursuant to Code Civ. Proc. §425.16(e).  Defendant argues that Plaintiff’s claims against her arise from protected activity, as statements in her podcast were speech in connection with a public issue or an issue of public interest.  Defendant further contends there is no probability that Plaintiff’s claims will prevail because they are time-barred and fail to allege a required element of “actual malice.”        

TIMELINESS OF OPPOSITION 

The opposition to the special motion to strike was due nine court days before this hearing, or on February 22, 2023.  Plaintiff did not file the opposition until February 28, 2023.  Plaintiff provides no explanation as to her late filing.  The Court exercises its discretion to strike the opposition as untimely.   

LEGAL STANDARD 

“Litigation of an anti-SLAPP motion involves a two-step process. First, the moving defendant bears the burden of establishing that the challenged allegations or claims arise from protected activity in which the defendant has engaged.  Second, for each claim that does arise from protected activity, the plaintiff must show the claim has “at least ‘minimal merit.’  If the plaintiff cannot make this showing, the court will strike the claim.”  (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009.)   

DISCUSSION 

First Prong 

On the first prong, “courts are to consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.  The defendant’s burden is to identify what acts each challenged claim rests on and to show how those acts are protected under a statutorily defined category of protected activity.”  (Bonni, 11 Cal.5th at 1009.)  “A defendant need only make a prima facie showing at this stage.”  (Ojjeh v. Brown (2019) 43 Cal.App.5th 1027, 1035–1036.)   

To make a showing under the first prong, the moving defendant must demonstrate that the alleged conduct underlying each cause of action fits one of the categories spelled out in § 425.16 subdivision (e).  (Nevallier v. Sletten (2002) 29 Cal.4th 82, 88.)  Defendant contends her podcast falls within three categories:  Subd. (e)(2) protects any “written or oral statement or writing made in connection with an issue under consideration or review by a … judicial body or any other official proceeding authorized by law.”  Subd. (e)(3) protects statements “made in a place open to the public or a public forum in connection with an issue of public interest.”  Subd. (e)(4) applies to “conduct in furtherance of the exercise of … the constitutional right of free speech in connection with a public issue or an issue of public interest.”   

To fall within the scope of subdivision (e)(3) and (4) of the anti-SLAPP statute, a defendant must establish: (1) that the challenged statement or conduct implicates a public issue or a matter of public interest; and (2) that the speech or conduct was made “in connection with” a public issue or a matter of public interest. (See § 425.16, subd. (e)(3)–(4); see also FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 149.)  

To determine whether challenged speech or other conduct involves a public issue or a matter of public interest, courts look to whether “the subject of the speech or activity ‘was a person or entity in the public eye’ or ‘could affect large numbers of people beyond the direct participants’; and whether the activity ‘occur[red] in the context of an ongoing controversy, dispute or discussion’[.]” (Id. at pp. 145–146.)  

As to the second (“in connection with”) requirement, the California Supreme Court recently articulated a two-part test to determine whether speech or conduct was made “in connection with” an issue of public interest. (FilmOn, 7 Cal.5th at 149.)  “First, we ask what ‘public issue or … issue of public interest’ the speech in question implicates—a question we answer by looking to the content of the speech.  Second, we ask what functional relationship exists between the speech and the public conversation about some matter of public interest.” (Id. at pp. 149–150.)  The second part of this test “address[es] the specific nature of [the defendant’s] speech and its relationship to the matters of public interest.” (Id. at 152.) 

Here, Defendant’s podcast involved a public issue or a matter of public interest, namely, a COVID lockdown protest and the January 6, 2021 Capitol protests.  The subject of the speech was a person who was already in the public eye (indeed Plaintiff claims she is a “celebrity”), and the speech occurred in the context of an ongoing public controversy about mask mandates, lockdown measures, and the validity of the 2020 presidential election.  (See D.C. v. R.R. (2010) 182 Cal.App.4th 1190, 1215 (in general, a public issue is implicated if the subject of the statement underlying the claim was a person in the public eye or was part of an ongoing controversy).)   

Before the podcast, Plaintiff was already in the public eye.  Video footage of Plaintiff’s statements at the lockdown protest had already been widely circulated by co-defendant TMZ.  Plaintiff was also the subject of several news articles including one by New York Daily News titled: “SEE IT: Maskless woman goes on homophobic rant during anti-lockdown protest in LA” published on December 2, 2020  (Lewis Decl. ¶ 4.)   As to the Capitol protest, Plaintiff had live-streamed footage of herself at the protest, saying “okay, we are storming the Capitol.  And I’m going up in there.  I’m going to break into Congress.”  (Ex. 1 to Lewis Decl, p. 4.)  Plaintiff also posted on Facebook: “We are going to Washington D.C. to take out [sic] country back.  The insurrection act begins!  Praise Jesus!”   (Ibid. at p. 3.)  Plaintiff, therefore, injected herself into the public eye.   

To be sure, the podcast was not a serious discussion about lockdown mandates or the Capitor protests.  It is more like tabloid news or celebrity gossip.  But even tabloid news is entitled to anti-SLAPP protection as being matters of public interest. (See Nygrd, Inc. v. Uusi–Kerttula (2008) 159 Cal.App.4th 1027, 1042 (Nygrd) (to be a public issue, the issue “need not be ‘significant’,” “it is enough that it is one in which the public takes an interest,” and public issue includes matters that could be described as mere “celebrity gossip” or “tabloid issues”).)   

The podcast was also made “in connection with” a public issue.  It contributed to and furthered public conversation on the issue of mask mandates and the Capitol protests.  While its contribution may be slight or inconsequential as it is not serious news, it is still speech “in connection with” a public issue.  (See e.g., Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 808-810 (discussion of a reality show contestant was protected by the anti-SLAPP statute; the “in connection with” requirement, like all of section 425.16, is to be “construed broadly” so as to encourage participation by all segments of our society in vigorous public debate related to issues of public interest).) 

In addition to subdivision (e)(3) and (4) of the anti-SLAPP statute, Defendant argues her podcast is also protected activity under subdivision (e)(2) which protects any “written or oral statement or writing made in connection with an issue under consideration or review by a … judicial body or any other official proceeding authorized by law.”  The podcast reported on Plaintiff’s arrest as part of court and other government proceedings, and therefore, concerned “an issue under consideration … by a judicial body or other official proceeding” within the scope of §425.16(e)(2).   (Robertson v. Hearst Corp., 2016 Cal. Super. LEXIS 8136 at *2 (reporting on State Bar proceedings and federal civil case falls within activity protected under §425.16(e)(2).) 

Accordingly, because Plaintiff’s claims arise from Defendant’s podcast, a protected activity, the Court concludes Defendant has met the first prong, and the burden shifts to Plaintiff. 

Second Prong – Standard of Review 

Once a defendant demonstrates that protected conduct is at issue, the plaintiff must show 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.  (See Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89.)  “Precisely because the statute (1) permits early intervention in lawsuits alleging unmeritorious causes of action that implicate free speech concerns, and (2) limits opportunity to conduct discovery, the plaintiff's burden of establishing a probability of prevailing is not high: We do not weigh credibility, nor do we evaluate the weight of the evidence.  Instead, we accept as true all evidence favorable to the plaintiff and assess the defendant’s evidence only to determine if it defeats the plaintiff’s submission as a matter of law. Only a cause of action that lacks ‘even minimal merit’ constitutes SLAPP.”  (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699.)  

The SLAPP statute’s second element--a “probability of prevailing”--means a “reasonable probability of prevailing, not prevailing by a preponderance of the evidence.  For this reason, a court must apply a “summary-judgment-like” test, 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.) 

Second Prong – Statute of Limitations 

Defendant argues that Plaintiff’s defamation claim is time-barred.  Defamation has a one year statute of limitations. (Hebrew Academy of San Francisco v. Goldman (2007) 42 Cal. 4th 883, 891; Code Civ. Proc. § 340, subd. (3).)  In defamation actions, the general rule is that publication occurs (and the cause action accrues) when the defendant communicates the defamatory statement to a person other than the person being defamed.  (Hebrew Academy, 42 Cal.4th at 891; Shively v. Bozanich (2003) 31 Cal.4th 1230, 1245–1246 (“Under the single-publication rule, with respect to the statute of limitations, publication generally is said to occur on the first general distribution of the publication to the public. … Under this rule, the cause of action accrues and the period of limitations commences, regardless of when the plaintiff secured a copy or became aware of the publication.”) (citations and internal quotations omitted).)   

Here, Plaintiff’s podcast was broadcast on May 21, 2022.  Plaintiff filed this lawsuit more than a year later, in December 2022.  Accordingly, Plaintiff’s defamation claim is time-barred, and the Court grants the special motion to strike the defamation claim.  (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 687-688 (anti-SLAPP motion granted on statute of limitation grounds).) 

Moreover, as Plaintiff’s other causes of action rely on alleged defamatory statements, they are also subject to a one year statute of limitations.  The Uniform Single Publication Act “USPA”) states: “No person shall have more than one cause of action for damages for libel or slander or invasion of privacy or any other tort founded upon any single publication or exhibition or utterance, such as any one issue of a newspaper or book or magazine or any one presentation to an audience or any one broadcast over radio or television or any one exhibition of a motion picture. Recovery in any action shall include all damages for any such tort suffered by the plaintiff in all jurisdictions.”  (Civ. Code, § 3425.3.)  

Relying on the USPA, courts have found that “[w]here the complaint is based on an offensive statement that is defamatory, plaintiffs have not been allowed to circumvent the statutory limitation by proceeding on a theory other than defamation.” (Long v. Walt Disney Co. (2005) 116 Cal. App. 4th 868, 873.)  California courts have held that the USPA’s phrase “any tort” means exactly that. “The enactment of section 3425.3 of the [USPA] by the California Legislature reflected great deference to the First Amendment and sought to alleviate many problems presented in respect to tort actions where mass communications are involved. When the Legislature inserted the clause ‘or any other tort’ it is presumed to have meant exactly what it said.”  (Long v. Walt Disney Co. (2005) 116 Cal. App. 4th 868, 874-875) (applying USPA to claims for violation of the right of publicity, the appropriation of likenesses, and intentional infliction of emotional distress); Strick v. Superior Court (1983) 143 Cal. App. 3d 916, 924 (a plaintiff whose cause of action for libel was time-barred under section 3425.3 and Code of Civil Procedure section 340, subdivision (3) could not proceed with another, equivalent cause of action, for to do so would undercut the legislative policies of the statute of limitations and the USPA; applying USPA to claims for libel, fraud, and deceit based on the publication of a magazine article); McGuiness v. Motor Trend Magazine (1982) 129 Cal. App. 3d 59, 63 (applying USPA to cause of action for negligence); (Belli v. Roberts Brothers Furs (1966) 240 Cal. App. 2d 284, 289–290 (USPA applies to invasion of privacy claim); Baugh v. CBS, Inc. (N.D.Cal. 1993) 828 F. Supp. 745, 756 (applying USPA to claims for trespass, unfair competition, fraud, and intentional and negligent infliction of emotional distress).)  Accordingly, the Court concludes all of Plaintiffs’ claims are barred by the one year statute of limitations, and for this reason, the Court grants Defendant’s special motion to strike.   

Second Prong-Actual Malice 

Defendant argues that Plaintiff must show (which she cannot) actual malice as to all her claims, as she is a limited public figure.  The Court agrees. 

Where the plaintiff is a limited public figure, she must prove that the defendant made the libelous statement with “actual malice.” (Balla v. Hall (2021) 59 Cal.App.5th 652, 675.)  A limited public figure is one who “voluntarily injects” herself into a public controversy and thereby becomes a public figure for a limited range of issues.  (Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 351-52.)  To qualify as a limited purpose public figure, a plaintiff “must have undertaken some voluntary  [affirmative] act[ion] through which [s]he seeks to influence the resolution of the public issues involved." (Reader's Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 254.)  Whether or not one is a limited public figure is a question of law for courts to decide.  (Id. at p. 252.) 

Here, Plaintiff has made herself a limited public figure by voluntarily injecting herself into debates about the propriety of lockdown measures and the validity of the 2020 presidential election.  She voluntarily streamed herself while engaging in protests.  (Ex. 1 to Lewis Decl.)  And she regularly speaks on podcasts and uses her public plight to fundraise.  (Lewis Decl. ¶ 7a.) 

As a limited public figure, Plaintiff was required to plead and must show by clear and convincing evidence that Defendant acted with actual malice.  (Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 274.)  In addressing the issue whether plaintiff has demonstrated the existence of a prima facie case, “we [must] bear in mind the higher clear and convincing standard of proof.”  (Id.)   

A defendant acts with “actual malice” when publishing a knowingly false statement or where she “entertained serious doubts as to [its] truth.” (Reader's Digest, 37 Cal.3d at 256.)  The “actual malice” requirement is not limited to defamation but applies to all torts alleged based on allegedly defamatory statements.  (Balla, 59 Cal.App.5th at 687 (requiring proof of actual malice to a false light claim); Fellows v. National Enquirer, Inc. (1986) 42 Cal.3d 234, 240 (requiring proof of actual malice not only for defamation claim but also for false light invasion of privacy and intentional infliction of emotional distress claim).)  

Here, Plaintiff has not pled clear and convincing evidence demonstrating actual malice.  She has only identified one false statement – that she did not call Flagg from prison – but she has not pled that Defendant knew the truth, or that Defendant had serious doubts as to the truth of statements in her podcast.  Accordingly, on this additional basis, the Court grants the special motion to strike as to all of Plaintiff’s claims against Defendant.        

Because the Court concludes Plaintiff’s claims are time-barred and fail to allege an essential element of actual malice, the Court does not consider other claim-specific grounds raised by Defendant for granting the special motion to strike.   

 

CONCLUSION 

For the foregoing reasons, the Court GRANTS Defendant’s special motion to strike Plaintiff’s complaint against Defendant. 

   

DATED: March 7, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court