Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

 

BACKGROUND 

 

  This is a slander case.  Plaintiff Adam Tenser is an entertainment lawyer.  (First Amended Complaint (“FAC”) ¶ 15.)  He did transactional work for Blake Leibel.  (Id.)  Leibel was arrested and later convicted of the gruesome murder of his girlfriend who was mutilated and drained of blood.  (Id.)  While attending Leibel’s trial, Tenser was accused of stalking a juror.  The juror was frightened and was relieved of jury duty by stipulation of counsel.  (Id. ¶ 22.)  The Court said: “I don’t want anyone following jurors,” and juror #9 responded: “I really don’t think he was following me, I’m paranoid now.”  (Id.)   

Defendant Catherine Townsend is a journalist and hosts a weekly podcast called “Blood Money” that covers true crimes.  (Id. ¶ 25; Townsend Decl. ¶10.)  Townsend reported on the Liebel trial, and as relevant here, stated that “During the trial ... weird things started to happen.  A juror went to the judge Mark Windham and said that she had been followed by a guy she recognized.  She claimed that she was being stalked by Jeremy Tenser, Blake’s friend.  The judge said QUOTE: ‘This juror was so frightened by the behavior that she described that this court was forced to relieve her.”  END QUOTE.  Now Jeremy Tenser completely denied this; he said that this charge was ridiculous – but the judge ended up banning Jeremy from the rest of the trial.  The juror was so freaked out that she had to be replaced.”   (Ex. 2 to Townsend Decl.)  The podcast aired on November 3, 2022.  (Id.; FAC ¶25) 

Tenser argues that the foregoing was slander because Townsend failed to report the juror’s statement that: “I really don’t think he was following me, I’m paranoid now.”  (FAC ¶27.)  Tenser brings a single claim for defamation/slander per se against Townsend.   

This hearing is on Townsend’s special motion to strike the FAC pursuant to Code Civ. Proc. §425.16(e).  Townsend argues that Tenser’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.  Townsend further contends there is no probability that Tenser’s claims will prevail because her statements are protected by the fair report privilege, and the claims fail to allege the required element of “actual malice.”  There was no opposition filed as of the posting of this tentative ruling.    

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.)  Townsend contends her podcast falls within two categories:  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, the murder trial of Leibel which was widely publicized due to the violent nature of the murder and Leibel’s celebrity as a graphic novelist.  The subject of the speech was a person who was already in the public eye -- Tenser had given an in depth interview to the Hollywood Reporter magazine about Leibel on December 8, 2017 (Townsend Decl. ¶14), well before Townsend’s podcast aired on November 3, 2022.  Tenser was also the subject of a National Post article describing his conduct at the Leibel trial, including that he had been thrown out of the murder trial for allegedly tailing a juror to his car.  (Townsend Decl. ¶ 15; Ex. 4 to Townsend Decl.)  The article was published on June 18, 2018, more than four years before Townsend’s podcast aired.  (Id.) 

Further, the speech occurred in the context of an ongoing public controversy about a notorious murder trial.  (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).)  Indeed, every statement in the podcast relating to Tenser had already been widely reported by other news sources and in court records.  (Townsend Decl. ¶13.)   

The podcast was also made “in connection with” a public issue.  It contributed to and furthered public conversation on the crimes committed by “white collar criminals.”  Even assuming 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).) 

Finally, the podcast was made in a public online forum.  Online forums are “open to the public where information is freely exchanged.”  (ComputerXpress Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1007 (website that organized a chat room where public was free to post messages was a public forum).)  Online forums are considered public forums within the meaning of the anti-SLAPP law.  (Barrett v. Rosenthal (2006) 40 Cal.4th 33, 41 fn. 4; Traditional Cat Assn. Inc. v. Gilbreath (2004) 118 Cal.App.4th 392, 397.) 

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

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.)  Here, by failing to file an opposition, Plaintiff has not met his burden to show his claims have minimal merit.  Even if he had, the Court concludes Plaintiff cannot show he has a reasonable probability of prevailing, for reasons set forth below.     

Second Prong – Fair Report Privilege 

Townsend argues Defendant’s claims fail because her podcast is protected by the fair report privilege.  The Court agrees. 

Civil Code section 47(d) makes privileged ‘a fair and true report in, or a communication to, a public journal, of (A) a judicial, (B) legislative, or (C) other public official proceeding, or (D) of anything said in the course thereof, or (E) of a verified charge or complaint made by any person to a public official, upon which complaint a warrant has been issued.” (Civ. Code, § 47, subd. (d).)  The party invoking the privilege bears the burden of proving the privilege applies. (Carver v. Bonds (2005) 135 Cal.App.4th 328, 348-349; Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 109; Burrill v. Nair (2013) 217 Cal.App.4th 357, 396.) 

The fair report privilege has been construed broadly.  (Sipple v. Foundation for Nat. Progress (1999) 71 Cal.App.4th 226, 240, 83 Cal. Rptr. 2d 677.)  For section 47(d) to apply, the report need only have “some connection or logical relation to the proceedings,” a “lenient” standard that is “more lax than the concept of relevancy itself.”  (McClatchy Newsps. v. Superior Court (1987) 189 Cal.App.3d 961, 972-74.)  The privilege “carries with it a certain amount of literary license.  The reporter is not bound by the straitjacket of the [report’s] exact words.”  (Id. at 975-76.)  Instead, a report is absolutely protected if it “captures the substance, the gist [or] the sting” of the court record or proceeding.  (Sipple, 71 Cal.App.4th at 244.)  The privilege does not depend on whether each statement is expressly attributed to an official record.   

Consistent with this broad construction, Section 47(d) shields news reports that present “a history of [a] proceeding,” including not only court records but also related interviews.  (Hayward v. Watsonville Register-Pajaronian and Sun (1968) 265 Cal.App.2d 255, 260-61.)  This application reflects the principle that the privilege must ensure “a certain amount of breathing room for newspapers to explain the basis of a judicial proceeding without at the same time opening themselves up to exposure for defamation liability.”  (Dorsey v. National Enquirer (1992) 973 F.2d 1431, 1437.)  

Here, the podcast fairly reported on the fact that the judge had to dismiss a juror who believed he may have been followed by Tenser.  While the juror may have later equivocated as to whether Tenser was following him, this does not alter the gist of the juror’s earlier complaint.  Nor does it alter the fact that Tenser was in fact banned from the trial by the Court who apparently credited the juror’s first account that Tenser was following him.  In sum, Townsend’s statements fall within the broad scope of the fair report privilege.           

Second Prong-Actual Malice 

Townsend argues that Tenser must show (but cannot) actual malice as to all his claims, as he is a limited public figure.  The Court agrees. 

The concepts of public figure and actual malice normally arise in the context of a defamation action.  However, non-defamation claims brought by public figure plaintiffs also require a showing of actual malice.  (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 claims).) 

Where the plaintiff is a limited public figure, he must prove that the defendant made the slanderous 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 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, Tenser made himself a limited public figure by voluntarily injecting himself into coverage over the Leibel murder.  Tenser gave an in-depth interview to the Hollywood Reporter where he posited what caused his friend, Leibel, to murder his girlfriend.  (Ex. 3 to Townsend Decl.)  Tenser’s actions at the trial were also the subject of news coverage, including by the National Post.  (Ex. 4 to Townsend Decl., Townsend Decl. ¶13.)   

As a limited public figure, Tenser was required to plead and must show by clear and convincing evidence that Townsend 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.)  A plaintiff must plead and prove “evidence of actual doubt concerning the truth of the publication.”  (Fletcher v. San Jose Mercury News (1989) 216 Cal.App.3d 172, 184 (emphasis in original).) 

Here, Tenser has not pled clear and convincing evidence demonstrating actual malice.  Tenser has only identified one allegedly false statement – that he stalked a juror -- but he has not pled facts which would show Townsend had serious doubts as to the truth of this statement.  Indeed, Townsend did not state one way or another that this account was true.  She in fact qualified the statement with the following: “Now Jeremy Tenser complied denied this; he said that this charge was ridiculous[.]”  Accordingly, on this additional basis, the Court grants the special motion to strike as to all of Tenser’s claims against Townsend.        

Because the Court concludes Tenser’s claims are protected by the fair report privilege and also fail to allege an essential element of actual malice, the Court does not consider other claim-specific grounds raised by Townsend for granting the special motion to strike.   

 

CONCLUSION 

For the foregoing reasons, the Court GRANTS Defendant Catherine Townsend’s special motion to strike Plaintiff’s first amended complaint. 

   

DATED: July 11, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court