Judge: Joseph Lipner, Case: 23STCV03029, Date: 2023-09-05 Tentative Ruling

Case Number: 23STCV03029    Hearing Date: September 5, 2023    Dept: 72

Defendant Tariq Nasheed (Nasheed) specially moves to strike the complaint of plaintiff Taharka Aboke Bey (Bey) pursuant to Code of Civil Procedure section 425.16, California’s “Anti-SLAPP” statute.

The Court DENIES Nasheed’s motion.  Nasheed has not shown that the claims arise from protected activity under section 425.16, the first prong of the anti-SLAPP analysis.

BACKGROUND

On February 10, 2023, Bey sued Nasheed and his companies, King Flex Entertainment Inc. and Melanoid Nation Foundation, for defamation, slander, libel per se, and false light invasion of privacy.

Bey alleges he is “a V-Blogger personality ..., musical artist, [and] songwriter” whose chart-topping work has earned him “millions of fans ... .” (Compl., ¶¶ 8-9.) Apart from his alleged success as an entertainer, Bey also claims he “is well known for his volunteer work and philanthropic endeavors”. (Id., ¶ 11.)

Nasheed, according to Bey’s complaint, is a competing YouTube personality who aspires to “a career in the entertainment industry as a singer.” (Id., ¶ 14.) Nasheed promotes himself through online videos that, according to Bey, he uses as “a platform ... to publish and spread malicious rumors, slanderous assertions, and false information ... for his personal financial gain.” (Id., ¶ 17.)

Beginning on September 29, 2022, Nasheed began discussing Bey regularly on his YouTube channel. (Id., ¶ 21.) Among other claims, Nasheed repeatedly claimed Bey had committed domestic violence and child sex abuse. (Id., ¶¶ 28, 33-36, 41-44, 56-58.) After Bey sent a retraction letter, Nasheed ridiculed the letter on his YouTube channel and publicly reiterated his claims about Bey’s criminality. (Id., ¶ 56.) Bey sued.

Nasheed filed his motion on March 22, 2023; after some dispute regarding service, Bey served Nasheed with an “Objection to Defendant’s Slap [sic] Motion” on June 14, 2023, and filed that Objection on June 22, 2023. Nasheed filed a five-line “Reply Brief” on June 20, 2023.

ANALYSIS

Code of Civil Procedure section 425.16 permits a defendant to specially move to strike a cause of action that arises from certain conduct privileged under the law. The Legislature recognizes these sorts of actions, termed strategic lawsuits against public participation (“SLAPPs”), as a troubling tactic wherein bad actors may force other citizens to defend against meritless legal claims as an improper cost for exercising their fundamental rights. Thus, California law allows a defendant who successfully establishes she has been subjected to a SLAPP to strike the complaint therein on an expedited basis and recover the costs of her defense.

All further undesignated statutory references are to the Code of Civil Procedure, and all undesignated subdivision references are to section 425.16 of that Code.

Section 425.16 posits a two-step process for determining whether an action is a strategic lawsuit against public participation. First, the Court must determine whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. (See § 425.16, subd. (b)(1).) If the defendant makes a threshold showing that the challenged cause of action is one arising from protected activity, the burden shifts to the plaintiff to establish a likelihood of prevailing on the complaint. (See ibid.)

At the first stage of an anti-SLAPP analysis, the court must decide whether the moving party has met its threshold burden to show the suit arises from “protected activity.” (See Park v. Board of Trustees of California State University¿(2017) 2 Cal.5th 1057, 1061.) Broadly speaking, the anti-SLAPP statute protects the rights of free speech or petition. (Ibid.) The moving party’s burden may be met by showing the act underlying the plaintiff’s cause of action fall within one of the four categories of conduct set forth in section 425.16, subdivision (e): 

(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, [¶] 

(2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, [¶] 

(3) 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 [¶] 

(4) 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. 

            Defendants argue their conduct falls within the bounds of subdivisions (e)(3) or (e)(4): either that they made statements in a public forum in connection with an issue of public interest, or that their conduct generally furthered free speech in connection with an issue of public interest.

            As an initial matter, “ ‘[w]eb sites accessible to the public ... are “public forums” for purposes of the anti-SLAPP statute.’ [Citations.]” (Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1252.) Nasheed made his statements on YouTube; they were made in a public forum. In order to fall within the ambit of section 425.16, he must show he made his statements in connection with an issue of public interest (regardless of whether he relies on subdivision (e)(3) or (e)(4)).

            In order to determine whether statements regard an issue of public interest, the court “look[s] for ‘the principle thrust or gravamen of the plaintiff’s cause of action.’ ” (Hecimovich v. Encinla School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 466.) The definition of “public interest” for purposes of section 425.16 “must be ‘ “construed broadly” so as to encourage participation by all segments of our society in vigorous public debate ... .’ [Citation.]” (Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 23.) However, “ ‘[t]he fact that “a broad and amorphous public interest” can be connected to a specific dispute is not sufficient to meet the statutory requirements’ of the anti-SLAPP statute.” (World Financial Group, Inc. v. HBW Ins. & Financial Services, Inc. (2009) 172 Cal.App.4th 1561.)

            The court applies a number of “guiding principles” to discern an “issue of public interest” under section 425.16, among them (1) that the interest go beyond “mere curiosity”; (2) that the matter be “of concern to a substantial number of people”; (3) that there be “some degree of closeness” between challenged statements and an asserted interest; and (4) that “the focus of the speaker’s conduct should be the public interest rather than a mere effort ‘to gather ammunition for another round of [private] controversy ... .’ ” (Terry v. Davis Community Church (2005) 131 Cal.App.4th 1534, 1546-1547, quoting Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1132-1133 (Weinberg).)

Defendant bears the burden to show his conduct regards an issue of public interest. In their five-line Reply Brief, defendants argue they “submitted a Declaration carrying their prong 1 burden that the speech at issue was in connection to Plaintiff’s criminal conduct, an issue of public concern.” (Reply Brief, 1:1-3.) Nasheed’s four-paragraph declaration and one-exhibit declaration, however, did not carry this burden.  Defendants did not demonstrate that plaintiff’s alleged past criminal conduct is an issue of public concern. The record reflects only that Nasheed made claims about Bey’s criminal record, and that he did it on the Internet.

The first paragraph of Nasheed’s declaration attests to his own competence as a declarant. (Nasheed Decl., ¶ 1.) In the second paragraph he affirms his ownership of the companies that are his co-defendants and attests he “operate[s] a YouTube [sic] channel dedicated to public news and entertainment” (Id., ¶ 2.) None of these statements are relevant to the application of section 425.16.

The fourth line of Nasheed’s declaration purports to authenticate “a true and correct copy of a judicially signed form documenting Plaintiff’s status as being a registered sex offender.” The exhibit is inadmissible. Nasheed has not authenticated it (see Evid. Code § 403; People v. Goldsmith (2014) 59 Cal.4th 1258, 267), and its contents are hearsay regardless of any purported “judicial signature” (see People v. Yales (2018) 25 Cal.App.5th 474, 486).

Nasheed offers two sentences of arguably relevant, admissible evidence where he attests: “Plaintiff is a music performer. In covering his career I came across public documents documenting his history as a sex offender ... .” (Nasheed Decl., ¶ 3.)

            Particularly given the weakness of Nasheed’s evidence, the fourth principle articulated in Terry and Weinberg, supra, has particular resonance here. Nasheed’s conduct has all the hallmarks of “ammunition” hurled at Bey in the course of a private controversy, albeit one that played out online. Both parties claim, without evidentiary support, that many people watch their YouTube videos. Even accepting these claims as true, no one testifies or offers evidence that their viewers particularly care about Bey’s character or his purported criminal record.

In fact, Weinberg specifically holds that “discussion of criminal activity” does not, by itself, render an issue “of public interest.” (Weinberg, supra, 110 Cal.App.4th at p. 1126; cf. Wolston v. Reader’s Digest Ass’n (1979) 443 U.S. 157, 168 [in defamation context, person who engages in criminal conduct does not “become[ ] a public figure for purposes of comment on ... issues relating to his conviction].) Nasheed needs to show something more in order to demonstrate Bey’s record is a matter of public concern.

The case on which Nasheed relies, Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, found that defendant had shown a matter of public interest in circumstances—and on an evidentiary record—quite different from the ones at issue here.  In Nygard, there was “evidence introduced by defendants” of “extensive interest” in the plaintiff and “particular interest” among a magazine’s readership in information having to do with plaintiff’s Bahamas residence.  (Id.  at p. 1042.)  There is no similar evidence in the bare-bones record of the current case.  The record is devoid of evidence or any showing that anyone other than Nasheed and Bey are interested in Nasheed’s accusations that Bey committed criminal conduct in the past.

            Nasheed argues that Bey is a “public figure” and therefore accusing him of a criminal past is a matter of public interest.  Discussion of whether Bey is a public figure bears more relevance to the second prong of an anti-SLAPP analysis; if he is, then his likelihood of prevailing on the merits of a defamation claim is considerably weaker. Bey’s alleged public figure status is relevant to the extent that discussion of a public figure is, naturally, more likely to be “an issue in which the public is interested.” (Nygard, Inc. v. Uusi-Kerttula, supra, 159 Cal.App.4th at p. 1042 [issue of public concern where there was “ ‘extensive interest’ in [plaintiff] – ‘a prominent business man and celebrity ...’ – among the Finnish public.”])  

However, Nasheed has not demonstrated that Bey is a public figure.  California recognizes “two classes of public figures”: “ ‘all purpose’ ” and “ ‘limited purpose.’ ” (McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 113.) The “all purpose” figure “has ‘achiev[ed] such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts.’ ” (Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 253-254; Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 745 [“ ‘fairly high threshold of public activity’ ” required; Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 342 [public figure status measured by “notoriety of their achievements or the vigor and success with which they seek the public's attention”].)

No one suggests that Bey is a “limited purpose” public figure who has injected himself into any controversy regarding his alleged criminal record.  And Nasheed has not shown Bey has reached such a level of notoriety that he is an all purposes public figure. 

            The court notes defendants failed to carry their burden as to the two corporate defendants for a separate reason: at this point, no one has alleged or established these two entities engaged in any conduct at all, much less any protected conduct.

            For all these reasons, the Court denies the special motion to dismiss.