Judge Joel R Wohlfeil, Case 37-2023-00003425-CU-DF-CTL 2024-01-19 Tentative Ruling

Judge: Joel R Wohlfeil, Case: 37-2023-00003425-CU-DF-CTL, Date: 2024-01-19 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - January 18, 2024

01/19/2024 09:00:00 AM C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited Defamation Motion Hearing (Civil) 37-2023-00003425-CU-DF-CTL SHARP VS ROSEN [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Strike, 11/20/2023

1. The Motion (ROA # 48) of Plaintiff and Cross-Defendant George Sharp ('Plaintiff' or 'Sharp') to strike the Cross-Complaint by Defendant and Cross-Complainant Brett Rosen ('Defendant' or 'Rosen'), is GRANTED.

This ruling is premised on the analysis set forth below.

First Prong: Protected Activity A party seeking the protection of section 425.16 has the initial burden of establishing that the statute applies. Code Civ. Proc. 425.16(b).

Section 425.16(b)(1) requires the Court to engage in a two-step process. Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 67, 68.

First, the Court decides whether Defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. Id. Defendant's burden is to demonstrate the acts of which Plaintiff complains were taken in furtherance of Defendant's right of petition or free speech under the United States or California Constitutions. Id. In making this determination, the Court considers 'the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.' Code Civ. Proc. 425.16(b)(2).

The preamble to section 425.16 states that its provisions 'shall be construed broadly.' Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal. App. 4th 1027, 1039.

This directive was added in 1997, when the Legislature amended the anti-SLAPP statute to address court cases that too narrowly construed the anti-SLAPP statute. Id. Section 425.16 encompasses '[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.' Code Civ. Proc. 425.16(b)(1).

This definition 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, or ... any other conduct in furtherance of the Calendar No.: Event ID: TENTATIVE RULINGS

3055213 5 CASE NUMBER: CASE TITLE: SHARP VS ROSEN [IMAGED] 37-2023-00003425-CU-DF-CTL exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.' Code Civ. Proc. 425.16(e)(3) and (4).

Web sites accessible to the public, such as Facebook, are 'public forums' for purposes of the anti-SLAPP statute. Cross v. Facebook, Inc. (2017) 14 Cal. App. 5th 190, 199.

The 'public interest' component of section 425.16(e)(3) and (4) is met when the statement or activity precipitating the claim involved a topic of widespread public interest, and the statement in some manner itself contributes to the public debate. Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal. App. 4th 1228, 1246.

Commenting on a matter of public concern is a classic form of speech that lies at the heart of the First Amendment. Id. 'Animal testing is an area of widespread public concern and controversy, and the viewpoint of animal rights activists contributes to the public debate.' Id., see also Sipple v. Foundation for Nat. Progress (1999) 71 Cal. App. 4th 226, 239, 240; Briganti v. Chow (2019) 42 Cal. App. 5th 504, 508; and ComputerXpress, Inc. v. Jackson (2001) 93 Cal. App. 4th 993, 1007, 1008.

The circumstances of this action are analogous to Sipple, Briganti and ComputerXpress, Inc.

The challenged statements concerned Defendant and Cross-Complainant Rosen, a person in the public eye in the 'micro-capitalization' trading world who frequently comments on investing strategies, investment fraud, and 'pump and dump' stock sales on his 'X' account (@BrettRosen325). The alleged defamatory comments concern a topic of widespread public interest: illegal stock trading schemes such as insider trading and 'pump and dump' stock sales. This is not a situation where the parties are involved in a personal or business relationship. Given these circumstances, the subject Tweets were made in a public forum and concerned an issue of public interest. Therefore, Cross-Defendant Sharp has satisfied the burden on the first prong of demonstrating protected activity.

Second Prong: Prevailing on the Merits Where a claim arises from protected activity the burden shifts to Plaintiff to establish a probability of prevailing on the merits. Code Civ. Proc. 425.16(b)(1).

Plaintiff responding to an anti-SLAPP motion must state and substantiate a legally sufficient claim in order to establish a probability of prevailing on the claim. Wilson v. Parker, Covert & Chidester (2002) 28 Cal. 4th 811, 821.

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 Plaintiff is credited.

Id.

In deciding the question of potential merit, the Court considers the pleadings and evidentiary submissions of both Plaintiff and Defendant. Id. Plaintiff, in meeting this burden, must rely on competent, admissible evidence. Evans v. Unkow (1995) 38 Cal. App. 4th 1490, 1497, 1498.

The Court's determination of the Motion cannot involve a weighing of the evidence, and the test is similar to the standard applied to evidentiary showings in summary judgment motions. Kyle v. Carmon (1999) 71 Cal. App. 4th 901, 907, 908.

This Motion is unopposed. Thus, Cross-Complainant Rosen has not satisfied the burden to establish a probability of prevailing on the merits. Specifically, no evidence has been submitted demonstrating the Calendar No.: Event ID: TENTATIVE RULINGS

3055213 5 CASE NUMBER: CASE TITLE: SHARP VS ROSEN [IMAGED] 37-2023-00003425-CU-DF-CTL occurrence of defamatory statements, publication, malice, damages, etc. The Motion is granted on this basis.

_____ 2. The Motion (ROA # 44) of Plaintiff and Cross-Defendant George Sharp ('Plaintiff') to strike portions of the First Amended Cross-Complaint ('FAC-C' - ROA # 40) by Defendant and Cross-Complainant Brett Rosen ('Defendant'), is MOOT as result of the concurrent ruling granting the special Motion to strike the entire pleading.

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