Judge: H. Jay Ford, III, Case: 21SMCV01868, Date: 2022-09-08 Tentative Ruling

Case Number: 21SMCV01868    Hearing Date: September 8, 2022    Dept: O

  Case Name:  Kavanaugh v. Klein, et al.

SUBJECT:                SLAPP MOTION

MOVING PARTY:   Defendants Ethan Klein and Ted Entertainment, Inc.

RESP. PARTY:         Plaintiff Ryan Kavanaugh

TENTATIVE RULING

            Defendants Ethan Klein and Ted Entertainment, Inc.’s SLAPP Motion is GRANTED. 

            Defendants’ Evidentiary Objections to M. Lambert Dec.—OVERRULE

            Defendants’ Evidentiary Objections to R. Kavanaugh Dec.—SUSTAIN as to identified references to “illegally,” “false” and “falsely” and “defamatory” and ¶18(3:1-16) and OVERRULED as to remaining objections. 

            Defendants’ Evidentiary Objections to Dec. of T. Clare—SUSTAIN as to Exhibits N, S, T, U, ¶¶6, 8, 9 and reference to “defamatory” in ¶5 (2:7). 

            Defendants’ Evidentiary Objections to Dec. of A. Gura—SUSTAIN

“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 (where moving party seeks to strike an entire cause of action alleging multiple factual bases, court does not determine whether 1^st step is met based on “gravamen” test but must determine whether each factual bases supplies the element of claim or merely provides context). 

I. 1^st step—Plaintiff’s complaint arises from protected conduct under (e)(3) and (e)(4)

            A.  Issues Preclusion

Defendants argue that certain issues determined by the Court in Triller, LLC v. Ted Entertainment, Inc. (“Triller case”) are binding on Ryan Kavanaugh in this action.  Defendants argue issue preclusion as to the following 1^st step determinations made in the Triller case’s SLAPP motion:  (1) Kavanaugh is a matter of public interest under step one of SLAPP; and (2) YouTube and Reddit are public forums under the SLAPP statute.  Defendants argue issue preclusion applies to these issues, and the statements alleged against them in this action are protected conduct under (e)(3) and (e)(4).

Issue preclusion bars relitigation of the same issues that were argued and decided in the previous action.  See DKN Holdings, LLC v. Faerber (2015) 61 Cal.4th 813, 824.  The elements of issue preclusion are “(1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party.  Id. at p. 825.  “The party asserting collateral estoppel bears a ‘heavy’ burden of proving all of these factors.” Kemp Bros. Construction, Inc. v. Titan Electric Corp. (2007) 146 Cal.App.4th 1474, 1482.

            “Issue preclusion prohibits the relitigation of issues argued and decided in a previous case, even if the second suit raises different causes of action.  Under issue preclusion, the prior judgment conclusively resolves an issue actually litigated and determined in the first action.  There is a limit to the reach of issue preclusion, however. In accordance with due process, it can be asserted only against a party to the first lawsuit, or one in privity with a party.”  DKN Holdings, LLC, supra, 61 Cal.4^th at 824.  Unlike claim preclusion, issue preclusion can be raised by one who was not a party or privy the first action, but “the party against whom the doctrine is invoked must be bound by the prior proceeding.”  Id. at 824-825. 

“The bar is asserted against a party who had a full and fair opportunity to litigate the issue in the first case but lost.  The point is that, once an issue has been finally decided against such a party, that party should not be allowed to relitigate the same issue in a new lawsuit.”  Id. at 827.

            “As applied to questions of preclusion, privity requires the sharing of an identity or community of interest, with adequate representation of that interest in the first suit, and circumstances such that the nonparty should reasonably have expected to be bound by the first suit.”  Id. at 826.

Joint and several liability alone does not put co-obligors in privity with each other for purposes of issue or claim preclusion, because “the liability of each joint and several obligor is separate and independent, not vicarious or derivative.”  Id. at 826. 

Likewise, shareholders are not generally in privity with the corporation if ownership is widely held.  See Gottlieb v. Kest (2006) 141 Cal.App.4^th 110, 150-151 (corporation and shareholders are distinct legal entities).  However, in the case of a corporation or entity where the shareholder or member is the sole owner, issue preclusion may apply, so long as (1) the owner actively participated in the action on behalf of the corporation and (2) the owner’s interest and those of the corporation are not so different that the owner should have an opportunity to relitigate the issue.  Id. at 151.

            As the party seeking to impose issue preclusion, Defendants have the “heavy burden” of establishing each element of the doctrine, including privity.  Defendants argue in a conclusory manner that Kavanaugh is the “owner” of Triller and Proxima.  Defendants fail to submit evidence of the nature of his ownership interest in either.  Defendants admit that Proxima is the entity that has an interest in Triller, but Defendants fail to submit any evidence as to Kavanaugh’s ownership interest in Proxima or Proxima’s ownership interest in Triller.  The Court in Triller referred to Kavanaugh as Triller’s “majority shareholder,” implying there were other Triller shareholders.  See Defendants’ Compendium of Exhibits, Ex. 129, p.8. 

Kavanaugh’s testimony on his ownership interests is equally vague.   Kavanaugh testifies that Proxima owns “an interest” in Triller.  See Dec. of R. Kavanaugh, ¶2.  Kavanaugh’s evidence establishes that he is the sole owner of Proxima, having bought out the interest of the only other member, Michael Lambert.  Id. at ¶10; see Dec. of M. Lambert, ¶3. 

            The evidence presented is insufficient to establish privity for purposes of issue preclusion.  In order to find that Kavanaugh was in privity with Triller, the Court must disregard the general rule that a corporate entity is separate from its shareholders or members.  See PacLink Communications Intern., Inc. v. Superior Court (2001) 90 Cal.App.4th 958, 963.  Kavanaugh was not named at all in the Triller action, and there were no allegations of vicarious or derivative liability against him.  The Court cannot find that Kavanaugh’s due process interests were satisfied through the Triller litigation as to the issues of whether he is a public figure or a figure of public interest or whether Youtube and Reddit are public forums. 

            In addition, while the Court in Triller clearly adjudicated the issue of whether Youtube and Reddit were public forums, it is not clear that the Court found Kavanaugh to be a matter of public interest under CCP §425.16(e)(3) and (e)(4).  The 1-12-22 Order states, “[T]his Court finds YouTube and Reddit are public forums because they are publicly accessible websites.”  See Defendants’ Appendix of Exhibits, Ex. 129, p. 7.  The 1-12-22 Order does not make such an unequivocal and clear finding as to whether Kavanaugh himself is a matter of public interest.  The Court found that the Triller App clearly satisfied the criteria for an issue of public interest under Daniel v. Wayans (2017) 8 Cal.App.5^th 367, 387-388.  See Defendants’ Appendix of Exhibits, Ex. 129, p. 9.  Collaterally, the Court stated, “Even Triller’s majority shareholder Mr. Kavanaugh, a nonparty here, has been the topic of many news articles regarding his business dealings and personal life.  Defendants cite to various articles…regarding Triller and Mr. Kavanaugh.”  Id.  For purposes of issue preclusion, the Court did not finally adjudicate the issue of whether Kavanaugh himself was an issue of public interest. 

            Defendants fail to establish that the requisite privity to apply issue preclusion.  In addition, Defendants fail to establish that the Court in Triller ever finally and fully adjudicated whether Kavanaugh was an issue of public interest under (e)(3) and (e)(4).

            B.  Defendants establish that Kavanaugh and his business dealings are issues of public interest

Defendants assert the challenged statements are protected under both (e)(3) and (e)(4).  Under (e)(3), protected conduct includes 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.  CCP §425.16(e)(3).  “The California Supreme Court held that Web sites accessible to the public are ‘public forums’ for the purposes of the anti-SLAPP statute.  Cases construing the term ‘public forum’ as used in section 425.16 have noted that the term is traditionally defined as a place that is open to the public where information is freely exchanged.  Under its plain meaning, a public forum is not limited to a physical setting, but also includes other forms of public communication.”  Kronemyer v. Internet Movie Database Inc. (2007) 150 Cal.App.4th 941, 950 (movie database website that was accessible to anyone who chose to visit the site was a public forum).  Thus, websites that are accessible to anyone who chooses to visit the site is a public forum.  Id.; see also Wilbanks v. Wolk (2004) 121 Cal.App.4^th 883, 984 (defendant’s statements were “published in her Web site on the Internet, meaning they are accessible to anyone who chooses to visit her Web set.  As a result, here statements hardly could be more public.” 

            Under (e)(4), protected conduct includes, “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.”  CCP §425.16(e)(4).  “The inquiry under the catchall provision instead calls for a two-part analysis rooted in the statute's purpose and internal logic. 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. It is at the latter stage that context proves useful.”  FilmOn.com Inc., supra, 7 Cal.5th at 149-150. 

“Not surprisingly, we have struggled with the question of what makes something an issue of public interest…We share the consensus view that a matter of concern to the speaker and a relatively small, specific audience is not a matter of public interest, and that a person cannot turn otherwise private information into a matter of public interest simply by communicating it to a large number of people.”  Rand Resources, LLC v. City of Carson (2019) 6 Cal.5^th 610, 621.

“[T]he California cases establish that generally, a public issue is implicated if the subject of the statement or activity underlying the claim (1) was a person or entity in the public eye; (2) could affect large numbers of people beyond the direct participants; or (3) involved a topic of widespread, public interest.  And where the issue is of interest to only a private group, organization, or community, the protected activity must occur in the context of an ongoing controversy, dispute, or discussion, such that its protection would encourage participation in matters of public significance.”  D.C. v. R.R. (2010) 182 Cal.App.4th 1190, 1226.

Defendants establish that Kavanaugh and his business dealings, including those with Elon Spar, who accused him of operating a Ponzi scheme, are issues of widespread public interest.   Defendants submit numerous articles in widespread, popular publications reporting on Triller, Kavanaugh specifically and Kavanaugh’s business dealings.  See Defendants’ Appendix of Exhibits, Exs. 41-98. 

            Defendants also establish based on Plaintiff’s allegations that Youtube, Klein’s Youtube program, as well as his Twitter posts, were made on a public forum.  See Complaint, ¶¶16 and 29.  As noted by the Court in Triller, the hallmark of a public forum is public access, not the right to public comment.”  See Defendants’ Appendix of Exhibits, Ex. 129, p. 7.  Based on Plaintiff’s own allegations, Klein’s podcast is on Youtube and it is part of the “Youtube community.”  Id.  Klein’s Youtube channel “reaches millions of viewers” and his two channels enjoy nearly 6.4 million and 3 million subscribers.  Id. at ¶20.  These alleged facts support a finding that Youtube is a public forum. 

            In response, Plaintiff argues that a personal vendetta cannot be protected conduct under (e)(4) and the test set forth in FilmOn. However, the Supreme Court recently rejected that premise. The mere fact that speech may “stem” from a personal dispute or a personal interest does not mean the speech cannot also implicate public issues and further the public discourse on those issues under (e)(4) and the two-part test under FilmOn.  See Geiser v. Kuhns (August 29, 2022) 2022 WL 3711582, at *9 (sidewalk protests by former homeowners regarding loss of their home due to foreclosure qualified as protected conduct under (e)(4); demonstrations implicated public issues of unfair foreclosures and residential displacement practices and furthered public discourse on those issues by drawing public attention to them). 

            Here, the Challenged Statements pertained to issues of public interest and they were made in a public forum.  Klein’s statements were also made to his audience, which Plaintiff alleges number between 3 and 6 million depending on the channel.  The statements were intended to further the public discourse, as they were made in a public forum and to a massive audience.  Thus, the Challenged Statements satisfy both (e)(3) and (e)(4). 

            Defendants establish that Plaintiff’s causes of action for defamation and defamation by implication arise from protected conduct.  The 1^st step of the SLAPP analysis is therefore satisfied. 

II. 2^nd step analysis—Plaintiff fails to establish his probability of prevailing

Once defendant demonstrates that a cause of action arises from protected conduct, the 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.  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.”  See Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699.

“The second prong of the statute deals with whether the plaintiff has “demonstrated a probability of prevailing on the claim.  Under section 425.16, subdivision (b)(2), the superior court, in making these determinations, considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ For purposes of an anti-SLAPP motion, the court considers the pleadings and evidence submitted by both sides, but does not weigh credibility or compare the weight of the evidence. Rather, the court's responsibility is to accept as true the evidence favorable to the plaintiff.  A plaintiff need only establish that his or her claim has minimal merit to avoid being stricken as a SLAPP.  With these descriptions in mind, we will not strike a cause of action under the anti-SLAPP statute unless it lacks even minimal merit.”  Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 261.

The “probability of prevailing” is tested by the same standard governing a motion for summary judgment, nonsuit, or directed verdict.  Thus, in opposing a SLAPP motion, it is plaintiff's burden to make a prima facie showing of facts that would support a judgment in plaintiff's favor.” Taus v. Loftus (2007) 40 Cal.4th 683, 714 (a “summary-judgment-like procedure”). 

            A.  The Challenged Statements and Plaintiff’s allegation of falsity

            The Challenged Statements are identified in ¶¶26-40 of the Complaint.  The statements were made from June 2021 through October 2021.  The statements were made by Klein during his Youtube show and on Twitter.  Klein asserted in the challenged statements that Kavaugh’s ex-business partner, Elon Spar, had accused him of running a Ponzi Scheme.  Klein indicated that these accusations had been reported on in the 2019 Variety article entitled, “Ryan Kavanaugh Accused by Ex-Partner of Running a Ponzi Scheme.”  See Complaint, ¶¶26-40.  Together with the statement that Spar had accused Kavanaugh of running a Ponzi scheme and reference to the 2019 Variety article as the basis for the statement, Klein also made comments regarding Kavanaugh’s character and desirability as a business partner based on Spar’s accusations.  Id. 

            According to Plaintiff, Defendants have been “re-publishing the defamatory and highly damaging accusation, which they knew to be false, that Mr. Kavanaugh was accused of running a criminal ‘Ponzi scheme.’  They did so in such a way that their series of statements was reasonably capable of sustaining the incorrect and defamatory meaning that Mr. Kavanagh did in fact run a criminal Ponzi scheme.”  See Complaint, ¶37.

            B.  Based on a totality of the circumstances, the Challenged Statements are not actionable statements of fact

“Defamation is an invasion of the interest in reputation. The tort involves the intentional publication of a statement of fact that is false, unprivileged, and has a natural tendency to injure or which causes special damage.”  Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645.  “The sine qua non of recovery for defamation ... is the existence of a falsehood.”  Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 259, 228.  Thus, a claim for defamation fails unless the challenged statement can be reasonably understood to express or imply a provably false assertion of fact.  See Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 19–20; Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1607–1608. 

Because of the falsity requirement, rhetorical hyperbole, vigorous epithets, lusty and imaginative expressions of contempt, and language used in a loose, figurative sense have all been accorded constitutional protection.”  Ferlauto v. Hamsher (1999) 74 Cal.App.4th 1394, 1401.  As explained in Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 385, “satirical, hyperbolic, imaginative, or figurative statements are protected because the context and tenor of the statements negate the impression that the author seriously is maintaining an assertion of actual fact.”

In determining whether a statement is actionable fact or nonactionable opinion, courts use a “totality of the circumstances” test.  See Franklin, supra, 116 Cal.App.4^th at 385.  The same totality of the circumstances test is used to determine whether the statement in question communicates or implies a provably false statement of fact.  Id.  “Under the totality of the circumstances test, first, the language of the statement is examined. For words to be defamatory, they must be understood in a defamatory sense.  Next, the context in which the statement was made must be considered.”  Id.  “Whether a statement declares or implies a provably false assertion of fact is a question of law for the court to decide, unless the statement is susceptible of both an innocent and a libelous meaning, in which case the jury must decide how the statement was understood.”  Id at 385.

When determining whether a statement has a defamatory meaning, “ a court is to place itself in the situation of the hearer or reader, and determine the sense or meaning of the language of the complaint for libelous publication according to its natural and popular construction.  That is to say, the publication is to be measured not so much by its effect when subjected to the critical analysis of a mind trained in the law, but by the natural and probable effect upon the mind of the average reader.”  Morningstar, Inc. v. Superior Court (1994) 23 Cal.App.4th 676, 688.  Equally as important, the court must carefully examine the context in which the statement was made, which means it must “look at the nature and full content of the communication and to the knowledge and understanding of the audience to whom the publication was directed.  ‘[T]he publication in question must be considered in its entirety; ‘[i]t may not be divided into segments and each portion treated as a separate unit.’  It must be read as a whole in order to understand its import and the effect which it was calculated to have on the reader, and construed in the light of the whole scope [of the publication].”  Baker, supra, 42 Cal.3d at 261.

The challenged statements are undisputed.  Based on a review of the challenged statements located at ¶¶26-40, the Court finds the language of the statements cannot be reasonably understood in the defamatory sense alleged by Plaintiff.  None of the statements assert that Kavanaugh was running a Ponzi scheme.  The statements assert that Kavanaugh’s ex-partner accused him of running a Ponzi scheme, and almost all the statements expressly referenced the 2019 Variety article as the source of that assertion.  In many instances, Klein read directly from the 2019 Variety article and ran laugh tracks and comedic voice tracks while reading it and repeating the headline from the 2019 Variety article.  See e.g. Defendants’ Appendix of Exhibits, Ex. 5, July 1, 2021 Podcast. 

Based on the Varity article, the contents of which are undisputed, Klein’s statements that Spar accused Kavanaugh of running a Ponzi scheme are true.  See Defendant’s Appendix of Exhibits, Ex. 95.  Spar did accuse Kavanaugh of running a Ponzi scheme in an unfiled, verified complaint.  Id. Even if Spar ultimately retracted those accusations and the complaint, the fact remains that he accused Kavanaugh of operating a Ponzi scheme.  Id.

Plaintiff does not dispute that his partner did accuse him of operating a Ponzi scheme.  Plaintiff does not dispute that Spar drafted a complaint containing those allegations and submitted it to the LA Superior Court.  Plaintiff’s objection is that Klein did not disclose Spar’s retraction of his complaint and the accusation that Kavanaugh was running a Ponzi scheme.  Spar stated later that the accusation was “not accurate.”  See Defendant’s Appendix of Exhibits, Ex. 95.  There is no evidence disputing that Spar accused Plaintiff of running a Ponzi scheme at one point, as reported by Variety.

            Plaintiff’s evidence that he never operated a Ponzi scheme is therefore irrelevant.  None of the statements are affirmative statements by Klein that Plaintiff operated a Ponzi scheme.

            The factual portion of the statements only pertain to whether Kavanaugh had been accused of running a Ponzi scheme by his ex-partner.  The remainder of Klein’s statements regarding Plaintiff’s character and references that Plaintiff was “shady,” etc. are opinions.  Klein’s statements could be interpreted to imply that Klein believed Spar’s original accusation that Kavanaugh had actually run a Ponzi scheme.  Such statements would be one of opinion, particularly when viewed in context.  Klein repeatedly stated that the basis for his statements regarding Kavanaugh’s trustworthiness were based on Spar’s accusations in his verified complaint. 

At best, Klein’s statements were statements of opinion regarding whether he believed Spar’s accusations.  This is most evident in Klein’s “retraction,” in which Klein detailed why he believed the original Spar accusation that Kavanaugh ran a Ponzi scheme over Spar’s later retraction.  See Complaint, ¶46.  Klein’s belief that Spar’s original accusations were true and that Kavanaugh had run a Ponzi scheme would be a statement of opinion based on the facts set forth in the Variety article. 

Such a statement of opinion would not be actionable, because the basis for such an opinion would have been fully disclosed, leaving no room for defamation by implication.  “A statement of opinion based on fully disclosed facts can be punished only if the stated facts are themselves false and demeaning.  The rationale for this rule is that when the facts underlying a statement of opinion are disclosed, readers will understand they are getting the author's interpretation of the facts presented; they are therefore unlikely to construe the statement as insinuating the existence of additional, undisclosed facts.  When the facts supporting an opinion are disclosed, readers are free to accept or reject the author's opinion based on their own independent evaluation of the facts.”  Franklin, supra, 116 Cal.App.4th at 387 (statements that FCC stole copyrighted material and plagiarized data were statements of opinion purportedly interpreting copyright law and contract law and applying them to a particular set of facts). 

In ¶48, Plaintiff recognizes an important aspect of Klein’s challenged statements—they were the product of his “belief,” which is an opinion not a fact, about Spar’s original accusations. “If Klein believed the accusations to be true after reading the correction and reviewing the pleading marked ‘UNFILED,’ at a minimum he had an obligation to conduct additional investigation to ascertain the truth or falsity of the claims, before republishing them to his millions of viewers around the globe. His failure to do so was reckless.”  Complaint, ¶48.  Plaintiff does not challenge the literal truth of Klein’s statements that Kavanaugh was accused of operating a Ponzi scheme by his ex-business partner. 

            The Challenged Statements do not convey any false assertion of fact and at best, suggest Klein’s opinion that Spar’s original accusations were true.  Based on the context of the statements, any suggestion by Klein that Spar’s original accusations were true was an opinion, not an assertion of fact.  Klein’s show is an informal talk show.  The atmosphere of the show is comedic commentary, with Klein, Hila Klein and the show’s staff spontaneously commenting on various headlines and popular trends.  The show’s commentary is punctuated by laugh tracks, music and comedic voice tracks.  Based on the transcripts provided and the flash drive, the show is not akin to a news program intended to convey news not opinion.  In fact, Plaintiff’s own allegations recognize that (1) Klein’s show is “part of the YouTube commentary community” that includes “YouTubers making videos criticizing other YouTubers and social media influencers” and (2) Klein’s shows include a “talk-radio style program” “disparaging Internet trends and social media personalities” and a program where he “performs pranks and skits and mocks people who have supposedly wronged him.” 

            Moreover, based the podcast episodes, Klein was clearly expressing hatred and disdain for Kavanaugh personally and he was trying to goad, insult and humiliate Kavanaugh, not with falsehoods, but with a true statement that Kavanaugh’s ex-business partner had accused him of operating a Ponzi scheme.  In that context, if Klein implied that he believed those accusations, no reasonable audience member could find that Klein’s assessment was anything other than an extremely biased opinion motivated by Klein’s personal animosity and anger over his legal conflicts with Kavanaugh. See Plaintiff’s Compendium of Exhibits, Exs. A-H. 

            “The sine qua non of recovery for defamation ... is the existence of falsehood.”  Franklin, supra,  116 Cal.App.4th at 384.  “The tort involves the intentional publication of a statement of fact which is false, unprivileged, and has a natural tendency to injure or which causes special damage.”  Ringler Associates Inc. v. Maryland Cas. Co. (2000) 80 Cal.App.4th 1165, 1179.  Plaintiff fails to submit prima facie evidence that the challenged statements were false, or that those statements falsely asserted as a fact that Plaintiff operated a Ponzi Scheme. 

            Defendants’ SLAPP Motion to Strike is GRANTED.