Judge: Maren Nelson, Case: 23STCV03331, Date: 2023-09-28 Tentative Ruling

Case Number: 23STCV03331    Hearing Date: September 28, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendant’s special motion to strike is DENIED.

            On 2/15/2023, Plaintiffs Darisuh Eghbali, Darisuh Eghbali Inc., and Boniad Ayeneh dba Ayeneh Foundation (collectively, Plaintiffs) filed suit against Nader Rafiee, OITN, Mehran Abdeshah, and IPN TV, alleging defamation.

            Now, Defendant Mehran Abshah (Defendant) specially moves to strike Plaintiff’s Complaint.

Legal Standard

On a special motion to strike pursuant to Code of Civil Procedure (CCP) section 425.16, also known as an anti-SLAPP motion, moving parties have the initial burden to demonstrate that a cause of action is subject to a special motion to strike. (Martinez v. Metabolife Inter. Ins. (2003) 113 Cal.App.4th 181, 186; Fox Searchlight Pictures Inc. v. Paladino (2001) 89 Cal.App.4th 294, 304.) First, the court must determine whether moving parties have made a prima facie showing that the attacked claims arise from a protected activity, including defendants’ right of petition, or free speech, under a constitution, in connection with issues of public interest. (Healy v. Tuscany Hills Landscape & Recreation Corp., (2006) 137 Cal.App.4th 1, 5; Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 278; Code Civ. Proc., § 425.16, subd. (e).) Moving parties can satisfy this burden by showing (1) statements made before legislative, executive or judicial proceedings, or made in connection with matters being considered in such proceedings, or (2) statements made in a public forum, or other conduct in furtherance of the exercise of the constitutional rights of petition or free speech, in connection with issues of public interest. (Code Civ. Proc.,­ § 425.16, subd. (e); Equilon Ent., LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66.) 

If the court finds this showing has been made, it must dismiss the cause of action unless the plaintiff meets its burden to demonstrate a probability of prevailing on the claim. (Code Civ. Proc., § 425.16, subd. (b)(1); Balzaga v. Fox News Network, LLC (2009) 173 Cal.App.4th 1325, 1336.) This means that the plaintiff must state a legally sufficient claim and must then present evidence that substantiates or sustains the claim. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61; see also 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 the plaintiff is credited”].) 

Factual Background

            This action arises out of a human rights event hosted in honor of Cyrus the Great Day in October 2022. Defendant allegedly published online comments challenging Plaintiff Eghbali’s motivations and activist record. In particular, Defendant allegedly made three news report on his YouTube Channel:

-         The first statements attributed to Defendant is that “[Plaintiff’s] motive for organizing the October 29, 2022 (Cyrus Event) and related projects are all directed towards encouraging people to attend his concerts and not to promote solidarity.” (Complaint ¶ 17(H).)

-         The second statement attributed to Defendant is “Tax documents of the Ayeneh Foundation under a magnifying glass of the channels of IPN!!! Dariush Eghbali and Abbasseh Towfigh and their $100,000 salary. Why and how? Watch it live on IPN TV YouTube Channel.” (Complaint ¶ 17(I).)

-         The third statement attributed to Defendant is an accusation that Plaintiff has not paid one dollar to help the people in Iran. (Complaint ¶ 17(L).)

Discussion

            Defendant argues that Plaintiffs’ claim implicates protected activity because news gathering and publication of news is protected activity, and the reporting concerns a matter of public interest. Defendant further argues that Plaintiffs cannot establish a probability of prevailing on the merits.

            As to the first prong, the Court agrees that Plaintiffs’ claim implicated protected activity. While, for reasons set forth below, the Court does not consider whether or not Defendant constitutes a news organization, the Court finds that Defendant’s speech concerned a matter of public interest, and thus implicates protected activity..

While “public interest’ does not equate with mere curiosity,” Defendant’s videos discussed Plaintiff Eghbali, a prominent activist within the community, and his corporate affiliates, and questioned and whether or not they were coopting social justice messages for improper reasons. (Weinberg v. Feisel (2003) 110 Cal.App.4^th 1122, 1132.) As such, the subject of the speech was a person who is in the public eye as an internationally renowned Persian artist/vocalist and social activist, and the activity occurred in the context of an ongoing discussion about the then recent uprising and burgeoning women’s movement in Iran. As such, the Court finds sufficient evidence from which to conclude that Defendant’s conduct concerned a matter of public interest. (See FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133

However, for the reasons set forth below, the Court agrees that Plaintiffs have satisfied the second prong of the anti-SLAPP analysis.

Defendant argues that Plaintiffs cannot establish their claims because: (1) Plaintiffs failed to request a retraction; (2) Plaintiffs have not suffered any actual damages; (3) Plaintiffs have not pled facts constituting actual malice; (4) Defendant’s statements are truthful and unactionable opinion; and (5) Plaintiffs failed to failed to plead that the three statements attributed to Defendant are “of and concerning” the two corporate affiliates.

The Court addresses each in turn.

As for the first contention, Civil Code section 48a provides that “[i]n any action for damages for the publication of a libel in a daily or weekly news publication, or of a slander by radio broadcast, plaintiff shall only recover special damages unless a correction is demanded and is not published or broadcast, as provided in this section….” Here, Defendant argues that Plaintiffs’ claims are barred because Plaintiffs failed to ever request a retraction. However, the Court finds that there are triable issues as to whether or not Defendant’s work constitutes a “daily or weekly news publication,” such that his conduct implicates section 48a. Defendant’s only evidence that he is a news organization is that he “considers” his channel to be a public affairs show about Persian news and culture.” (See Defendant Decl., ¶ 3.) However, he does not offer any additional evidence to show that he is part of an organization engaged in the act of news gathering or reporting to the public, beyond making videos which are made for public consumption. Defendant does not offer any legal support which could show that this conduct falls within the meaning of “a daily or weekly news publication,” nor does Defendant offer case law wherein Courts have found informal journalistic content to constitute a news publication within the meaning of section 48a. Without more, the Court has no basis to conclude that all is needed to qualify as a news publication is the production of videos for public consumption coupled with the belief that the content constitutes news. While it may very well be that Defendant’s conduct falls within the scope of section 48a, the Court cannot conclude, as a matter of law, that Plaintiffs were required to issue a retraction at this time. As such, Plaintiffs’ failure to request a retraction does not bar their claim as a matter of law.

As for the second contention, Defendant contends that Plaintiffs have not alleged special damages. However, Plaintiffs allege defamation per se based on Defendant’s accusation of criminal behavior by Plaintiff Eghabli, and this has required him to “incur special damages in having to spend money to correct these allegations including attorneys to file a public complaint alleging the falsity of these allegations readily accessible in a publicly available document.” (Opp., 13: 4-6.)

As for the third contention, Defendant argues that Plaintiffs are limited purpose public figures, and thus Plaintiffs must show by clear and convince evidence that the defamatory statements were made with actual malice. (Dickinson v. Cosby (2019) 37 Cal.App.5th 1138, 1154–55.) However, Plaintiffs submitted evidence that could show that Defendant made the comments in retaliation against Plaintiff Eghbali for not getting an interview and not being able to record in front of the stage at the Cyrus event. In Defendant’s video, he spoke about how he was prevented from recording or going back stage:

Mr. Jerry put his hand in front of the camera and said, sorry you cannot take a video now. I got very surprised and well, … and I had a serious interaction with him I should say, I should say it was severe, I had a serious interaction with him saying that you are not allowed to do it, and basically why can you possibly say that when and how I can speak or cannot speak with an entertainer behind the stage who wants to deliver a message.

(Exhibit 2, Video 2, Transcript Ex. 5 p.2).  

Then, Defendant stated, “I have videos, and if I do not speak with Mr. Dariush personally, I will make sure that all the social media, even if I have to spend ten thousand dollars from my own pocket, I will promote it so at least it reaches millions of people and it will.” (Exhibit 2, Video 2, p.28). At this stage, the Court finds that this evidence could sufficiently show that Defendant acted with actual malice in making the alleged defamatory comments. (Cabrera v. Alam (2011) 197 Cal.App.4th 1077, 1093) (To show malice, Plaintiff must show that “defendant made the allegedly defamatory statements with knowledge, or reckless disregard, of the falsity of the statements.”)

As for the fourth contention, “mere opinions are generally not actionable, a statement of opinion that implies a false assertion of fact is.” (Hawran v. Hixson (2012) 209 Cal.App.4th 256, 289.) Further, “the inquiry is not merely whether the statements are fact or opinion, but “whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact.” (Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1261.)

Here, Defendant made comments which included the following:

-         “…Then with that arrogant who comes to you, he preaches for you and such stuff, he announces that he is going to give a concert. Then a solidarity, solidarity, the right hand extended us as solidarity, and the left hand in the people’s pocket selling tickets. Ha, ha,” (Exhibit 1, Video 1, Transcript Ex. 4, p. 8)

-         “Tax papers of Ayeneh Foundation under magnifying glass of IPN TV!!! Dariush Eghbali and Abbaseh Towfigh and their 100-thousand-dollar wages!!! Why and How???” 

-         “You, for the people for whom you started a foundation, you have not helped them with even one single dollar, one single dollar, Mr. Dariush.” (Exhibit 4, Video 1, p. 9)

-         “And then the guy puts up an Invitation, gets money from Iran International,” (Exhibit, 1, Video 1, Transcript Ex. 4 p. 9)

-         On YouTube Mr. Dariush has five six million followers I mean the income generate by this, believe me, will be more than one hundred thousand dollars…” (Video 2, 11/1, 23 Ex. 2, Transcript Ex. 5 P. 4)

Plaintiffs submitted evidence to show that Plaintiff Eghbali never promoted any of his concerts at the Cyrus event, that Eghbali never received a salary (or otherwise took money) from the Ayeneh Foundation, and has never received money from Iran International. (See Eghbali Decl., Kalantari Decl.) The Court agrees that these statements can be demonstrably proven to be true or false, and thus do not constitute only unactionable opinion.

As for the fifth contention, Defendant argues that the complaint is bare of any allegation that Defendant made any false statement of fact “of and concerning” the two corporate affiliates. However, Plaintiffs submitted evidence that Defendant made numerous statements which suggested that the Ayeneh Foundation itself was not using its money to help the people of Iran, but rather was a source of personal enrichment for Plaintiff Eghbali. For example, Defendant stated in the video ““You, for the people for whom you started a foundation, you have not helped them with even one single dollar, one single dollar, Mr. Dariush.” That this statement was meant to implicate Ayeneh, in addition to Plaintiff Eghbali individually, is reinforced by Defendant’s additional statement that “Tax papers of Ayeneh Foundation under magnifying glass of IPN TV!!!”

In sum, while the Court concludes that Plaintiffs’ claims concern protected activity, the Court also concludes that Plaintiffs have stated a legally sufficient claim and have presented evidence that substantiates that claim. As such, Plaintiffs have met their burden to demonstrate a probability of prevailing on the claim. (Equilon Enterprises, supra, 29 Cal.4th at p. 61.)

Based on the foregoing, Defendant’s special motion to strike is denied.

It is so ordered.

Dated:  August    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  For more information, please contact the court clerk at (213) 633-0517.