Judge Stephen P. Pfahler, Case Number: 24STCV16898, Date: 2025-02-24 Tentative Ruling

Judge: Stephen P. Pfahler, Case: 24STCV16898, Date: 2025-02-24 Tentative Ruling

Case Number: 24STCV16898 Hearing Date: February 24, 2025 Dept: 68

Dept. 68

Date: 2-24-25 c/f 1-22-5 c/f 12-19-24

Case: 24STCV16898

Trial Date: Not Set

SPECIAL MOTION TO STRIKE

MOVING PARTY: Defendant, Medialab.AI Inc.

RESPONDING PARTY: Plaintiff, Cash Jones pka Wack 100

RELIEF REQUESTED

Special Motion to Strike the Complaint

SUMMARY OF ACTION

Plaintiff Cash Jones pka Wack 100 alleges Defendant Medialab.AI Inc. (Medialab) operates a website identified and located at worldstarhiphop.com (WSHH), with an “official channel” on video streaming platform YouTube.

On February 27, 2024, a “video” entitled “Wack 100 Exposed For Being An Alleged Federal Informant (Documentary)” was published on YouTube via the WSHH channel. The video represents Plaintiff was somehow involved in a criminal enterprise, which led to Plaintiff’s arrest in an unspecified location and police force, but was later identified as a “confidential source” of information by the Federal Bureau of Investigations (FBI). The video obtained certain notoriety and popularity, which Plaintiff alleges constitutes untruthful statements of criminal behavior, and tarnishes his reputation.

On July 8, 2024, Plaintiff filed a complaint for Defamation (Liber and/or Slander Per Se). On August 30, 2024, Medialab.AI Inc. answered the complaint.

RULING: Denied

Evidentiary Objections:

· Declaration of Andrew Wagner-Trugman: Overruled/Not Relied Upon (number 1)

· Declaration of Daniel Cotton: Overruled.

· Declaration of Cash Jones: Overruled (Plaintiff entitled to assert claims and opinions)/Not Hearsay (not offered for truth of the matter asserted in asserting defamatory statements). Objections NOT numbered.

· Declaration of Justin Trauben: Overruled (Counsel qualified to make statements. Not Hearsay, not offered for the truth of the matter asserted). Objections NOT numbered.

· Jones Objections to reply: Overruled. No actual identification of specific content. Plaintiff may challenge new argument in reply, but not via unspecified evidentiary objection.

Request for Judicial Notice: Granted.

The court take judicial notice as to the existence of the purportedly defamatory videos, as posted to YouTube by Defendant publisher, but cannot take judicial notice of any content for the truth of the matter asserted in any linked video.

Defendant Medialab.AI Inc. (Medialab) moves to strike the entire complaint for Defamation (Liber and/or Slander Per Se) on grounds that the complaint was filed as a retaliatory act for publication of First Amendment protected conduct in the posting of the “Documentary” entitled “Wack 100 Exposed for Being an Alleged Federal Informant” (“Documentary”). Medialab also contends Jones cannot prevail on said defamation claims due to both statutory protections under the Communications Decency Act (47 U.S.C. § 230) (CDA), and denial of the ability to state a claim for defamation under the elements as to a public figure. Plaintiff Cash Jones pka Wack 100 in opposition denies any First Amendment protections in that no public issue was addressed, and the Documentary was instead published with malicious intent in order to cause reputational harm. Jones maintains the defamation claim is properly alleged, supported with sufficient evidence, and not subject to CDA protection. Medialab in reply emphasizes the publication of the statements constitutes a matter of public interest in a public forum, and denies any probability of prevailing on the merits based on CDA protections and lack of defamatory content.

Standard

Code of Civil Procedure section 425.16 provides that “[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 California Constitution in connection with a public issue shall be subject to a special motion to strike unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (Code Civ. Proc. § 425.16, subd. (b).) Such a motion involves a two step analysis, in which the court must first determine whether a movant "has made a threshold showing that the challenged cause of action is one arising from protected activity . . . ." (Taus v. Loftus (2007) 40 Cal.4th 683, 712, quoting Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) If the court so finds, it must then examine whether the respondent has demonstrated a probability of prevailing on the claim. (Taus v. Loftus, supra, 40 Cal.4th at p. 712.)

An act in furtherance of a person's right to petition or free speech under the United States Constitution or California Constitution includes: “(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.” (Code Civ. Proc., § 425.16.)

The anti-SLAPP provisions apply where the allegations of the defendant’s protected activity are the gravamen or principal thrust of the cause of action. (Peregrine Funding, Inc. v. Sheppard

Mulin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 672 [“‘where a cause of action alleges both protected and unprotected activity, the cause of action will be subject to section 425.16 unless the protected conduct is “merely incidental” to the unprotected conduct’”].) If the allegations of protected activity are only incidental to a claim based essentially on non-protected activity, the mere mention of the protected activity does not subject the claim to an anti-SLAPP motion. (Martinez v. Metabolife International, Inc. (2003) 113 Cal.App.4th 181, 188 [“We conclude it is the principal thrust or gravamen of the plaintiff's cause of action that determines whether the anti-SLAPP statute applies (Citation), and when the allegations referring to arguably protected activity are only incidental to a cause of action based essentially on nonprotected activity, collateral allusions to protected activity should not subject the cause of action to the anti-SLAPP statute”].) .) “[W]hether the defendant's act qualifies as one in furtherance of protected speech or petitioning will depend on whether the defendant took the action for speech-related reasons.” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 889.) “[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute. (Citation.) Moreover, that a cause of action arguably may have been ‘triggered by protected activity does not entail it is one arising from such. (Citation.) In the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) Courts must “draw a careful distinction between a cause of action based squarely on a privileged communication … and one based upon an underlying course of conduct evidenced by the communication.” (White v. Western Title Ins. Co. (1985) 40 Cal.3d 870, 888.)

In determining the application of the special motion to strike statute, the court focuses “not on the label of the cause of action,” but on the underlying “activities” alleged in the challenged pleading. (1100 Park Lane Assocs. v. Feldman (2008) 160 Cal.App.4th 1467, 1484.) “If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 396.) “[A] plaintiff cannot frustrate the purposes of the SLAPP statute through a pleading tactic of combining allegations of protected and nonprotected activity under the label of one ‘cause of action.’” (Fox Searchlight Pictures, Inc v. Paladino (2001) 89 Cal.App.4th 294, 308.) “The anti-SLAPP statute's definitional focus is not the form of the plaintiff's cause of action but, rather, the defendant's activity that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.” (Navellier v. Sletten, supra, 29 Cal.4th at p. 92.)

“The anti-SLAPP statute does not apply where protected activity is only collateral or incidental to the purpose of the transaction or occurrence underlying the complaint.” (California Back Specialists Medical Group v. Rand (2008) 160 Cal.App.4th 1032, 1037.) “[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute. (Citation.) Moreover, that a cause of action arguably may have been ‘triggered by protected activity does not entail it is one arising from such. (Citation.) In the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity.” (Navellier v. Sletten, supra, 29 Cal.4th at p. 89.)

The court may consider the declarations in support in determining whether moving party meets the threshold for shifting the burden in a special motion to strike. (Code Civ. Proc., § 425.16, subd. (b)(2); Stewart v. Rolling Stone LLC (2010) 181 Cal.App.4th 664, 679 [The court interprets the activities of the parties through the allegations in order to determine free speech activity but need not adhere to the strict form of the operative pleading in order to make such determinations].)

Protected Activity

Plaintiff offers no dispute over the legally supported argument establishing the existence of YouTube as a public forum for purposes of considering protected speech activity. (Barrett v. Rosenthal (2006) 40 Cal.4th 33, 41.) “‘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.” [Citation.] “Under its plain meaning, a public forum is not limited to a physical setting, but also includes other forms of public communication.”’” Statements accessible to anyone visiting a website constitute public forums. (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1247.)

The debate focuses on the threshold issue of a matter constituting “public interest.” (Code Civ. Proc., § 425.16, subd. (e)(3).) Defendant relies on the identification of Plaintiff as a “public figure” and therefore any information regarding potential transactions, relationships, and/or other statements reflecting on societal interactions reflexively constitutes a matter of public interest. (Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1042 [“any issue in which the public is interested,” whether “significant” or not, can constitute an issue “the public takes an interest,” where the subject is a public figure subjecting themselves to “inevitable scrutiny and potential ridicule by the public and the media”] accord Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 808.)

Plaintiff carefully seeks to distinguish such potential sweeping inclusion by first denying any public persona, and instead characterizing the conduct of Plaintiff as a “behind the scenes” manager promoting the clients. Plaintiff additionally addresses the standard requiring consideration of the actual underlying nature of the speech itself rather than reliance on “generalities.” (Commonwealth Energy Corp. v. Investor Data Exchange, Inc. (2003) 110 Cal.App.4th 26, 34.)

More specifically, Plaintiff rejects the “synecdoche” theory of public interest, whereby a part of a statement or portion of conduct becomes relied upon to represent the entire basis of determination regarding public interest. (Ibid.) “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. [Citation.] 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. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 149–150.) “But the catchall provision demands ‘some degree of closeness’ between the challenged statements and the asserted public interest.” (Id. at p. 150.) “But ultimately, our inquiry does not turn on a normative evaluation of the substance of the speech. We are not concerned with the social utility of the speech at issue, or the degree to which it propelled the conversation in any particular direction; rather, we examine whether a defendant—through public or private speech or conduct—participated in, or furthered, the discourse that makes an issue one of public interest.” (Id. at p. 151.)

“A few guiding principles may be derived from decisional authorities. First, ‘public interest’ does not equate with mere curiosity. (Citations.) Second, a matter of public interest should be something of concern to a substantial number of people. (Citation.) Thus, a matter of concern to the speaker and a relatively small, specific audience is not a matter of public interest. (Citations.) Third, there should be some degree of closeness between the challenged statements and the asserted public interest (Citation); the assertion of a broad and amorphous public interest is not sufficient (Citation.) Fourth, 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....’ (Citation.) Finally, “those charged with defamation cannot, by their own conduct, create their own defense by making the claimant a public figure.” (Citation.) A person cannot turn otherwise private information into a matter of public interest simply by communicating it to a large number of people. (Citation.) (Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1132–1133.)

Plaintiff characterizes the underlying core of the alleged Documentary as arising from purported involvement in a conspiracy to commit murder and an informant relationship. Plaintiff denies the subject matter in any way contributes to public discourse, or even whether such discourse remains incidental to the professional life of Plaintiff. (Bernstein v. LaBeouf (2019) 43 Cal.App.5th 15, 23–26.) Even assuming a public persona image, “social or celebrity status of a party does not, without more, convert anything that party says into a matter of public interest.” The focus must still remain on the “specific nature of the speech” itself. (Id. at pp. 25-26.)

The court appreciates potential exploitation of (alleged) socially distasteful or even illegal celebrity conduct for purposes of generating viewership traffic in favor of content providers (politicians and athletes may also be subject to such “public scrutiny”). The intended target may however challenge said exposure. The special motion to strike specifically requires the court to consider the balance of whether such publication of alleged acts presents a public interest limiting the aggrieved party’s efforts to limit exposure and mitigate damage, or whether the claims should proceed towards further adjudication.

To the extent a person seeks to capitalize and monetize individual image, behavior, and preferences, intentional exposure for said purposes, including through social media, can constitute a willingness to engage in public interest consideration of perhaps unintended aspects of one’s private life. (See Kieu Hoang v. Phong Minh Tran (2021) 60 Cal.App.5th 513, 527-529.) The court however remains mindful of the denial of any public persona engagement by Plaintiff, and otherwise finds no particular support from Defendant of a person seeking to capitalize on a certain media based public image. [Declaration of Cash Jones, ¶¶ 32-34.] While a public figure becomes an evolving term as media becomes more democratized with Internet based content providers pervading society in multiple realms, the court still finds that mere characterization of a public figure will not automatically support a finding of the voluntary acceptance of said role. The court finds questions whether a person can be involuntarily thrust into a public figure spotlight for certain conduct based on alleged interactions presumably meant to remain private without any previously existing underlying foundation of public statement or demeanor reflecting back on said potentially hypocritical stances.

Neither party particularly addresses the underlying issue of the subject matter itself—alleged criminal conspiracy and cooperation with law enforcement. Police investigations into alleged criminal conduct in and of itself will not support a finding of public interest. (Weinberg v. Feisel, supra, 110 Cal.App.4th at p. 1135.) In the subject case, the court finds an insufficient record of a foundation justifying such scrutiny for purposes of the subject motion. The court rejects a finding that the “Reaction Video” response to the Documentary in any way reflexively renders Plaintiff a public figure after becoming the involuntary subject matter of the Documentary. [See Declaration of Brooke-Noelle D. Royes, ¶¶ 15-19.] (FilmOn.com Inc. v. DoubleVerify Inc., supra, 7 Cal.5th at p. 154; Commonwealth Energy Corp. v. Investor Data Exchange, Inc., supra, 110 Cal.App.4th at pp. 33-34; Weinberg v. Feisel, supra, 110 Cal.App.4th at pp. 1132–1133.)

Even if Defendant somehow characterized Plaintiff as a public figure based on the “Reaction Video,” the finds the denial of the claims remain decoupled from any public persona involving the management of clients in the music industry. (Bernstein v. LaBeouf, supra, 43 Cal.App.5th at pp. 23–26.) In other words, a nexus must still exist between the public persona and the subject matter. (Seelig v. Infinity Broadcasting Corp., supra, 97 Cal.App.4th 798, 808; Nygard, Inc. v. Uusi-Kerttula, supra, 159 Cal.App.4th at p. 1042.) Allowing free reign to make any claims under the guise of protected free speech and subsequent anti-SLAPP motion would render the statute meaningless

The court therefore finds Defendant fails to establish that the Documentary addresses subject matter of an issue of public interest thereby entitling Defendant to seek dismissal of the defamation action via a special motion to strike. The motion is therefore DENIED on this basis.

Probability of Success on the Merits

Even if Defendant established an issue of public interest, thereby requiring Plaintiff to establish a probability of success on the merits, the court also finds support for the action to proceed past the subject motion. When considering the probability of success on the merits, “a 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.” (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548.) “[A]n action may not be dismissed under this statute if the plaintiff has presented admissible evidence that, if believed by the trier of fact, would support a cause of action against the defendant.” (Taus v. Loftus, supra, 40 Cal.4th at p. 729.) “In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim.” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.)

The evidentiary showing by the plaintiff must be made by competent and admissible evidence. (Morrow v. Los Angeles Unified School District (2007) 149 Cal.App.4th 1424, 1444; Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1236-38.) A verified complaint does not constitute sufficient evidence for establishing a probability of success on the merits. (Comstock v. Aber, supra, 212 Cal.App.4^th at p. 950; Thayer v. Kabateck Brown Kellner LLP (2012) 207 Cal.App.4th 141, 160.)

Plaintiff maintains the complaint sufficiently articulates defamation based on the content of the accusation impugning character, lack of support for all claims based on denial of any such representations and claim of falsely made statements for purposes of inflicting reputational harm. (Civ. Code, § 45a; Barnes-Hind, Inc. v. Superior Court (1986) 181 Cal.App.3d 377, 386.) Assuming Plaintiff acted as a public figure, Plaintiff also maintains Defendant fails to establish a lack of malice in the underlying conduct. (Stewart v. Rolling Stone LLC (2010) 181 Cal.App.4th 664, 682 [“In libel actions, for example, public figures may prevail only if they prove that the defendant's defamatory statements were made with actual malice, whereas private figures need prove only negligence”].)

The six statements, as alleged in the complaint state:

1. “There were no arrests made other than Cash Jones”

2. “Wack 100 [Jones] was caught on a wiretap with Dale Dog conspiring to commit murder, this is why his house was raided and led him to working with the police”

3. “Wack [Jones] also referred to as confidential source number two”

4. [Jones] “has been exposed as a confidential informant in paperwork recently released”

5. “Wack [Jones] confirmed as confidential source”

6. “Why would the FBI be calling a big time gangster like Wack 100 [Jones] to make sure he’s ok unless there is a relationship between the two parties which could have started when the Felon was caught in Texas with firearms.”

Defendant relies on the CDA as a bar based on the characterization of its operations as a publisher for the speakers presented in the Documentary. The relied upon section states in relevant part:

(1) Treatment of publisher or speaker

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

(2) Civil liability

No provider or user of an interactive computer service shall be held liable on account of--

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

47 U.S.C.A. § 230(c)(1)

“There are three essential elements that a defendant must establish in order to claim section 230 immunity. They are ‘(1) the defendant [is] a provider or user of an interactive computer service; (2) the cause of action treat[s] the defendant as a publisher or speaker of information; and (3) the information at issue [is] provided by another information content provider. (Citation.)’” (Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 804–805.) “‘No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.’ Given that ‘distributors’ are also known as ‘secondary publishers,’ there is little reason to believe Congress felt it necessary to address them separately. There is even less reason to suppose that Congress intended to immunize ‘publishers’ but leave ‘distributors’ open to liability, when the responsibility of publishers for offensive content is greater than that of mere distributors.” (Barrett v. Rosenthal (2006) 40 Cal.4th 33, 48–49; Hassell v. Bird (2018) 5 Cal.5th 522, 541-542.)

The complaint itself alleges Defendant “caused and/or permitted” the Documentary to stream on the website. [Comp., ¶ 15.] It remains unclear as to the actual producer of the content, but the complaint specifically charges Defendant with inadequately investigating the veracity of any and all statements before publication. [Id., ¶ 26.] Defendant relies on a finding that its role as a publisher or facilitator of the content on its forum distinguishes it from a (third party) contributor making such statements. [See Declarations of Andrew Wagner -Trugman and Daniel Cotton.]

Plaintiff takes issue with the definition of “publisher” in that YouTube provides the platform for third party contributions, whereas Defendant publishes and/or distributes specifically curated content to its audience. Plaintiff cites a recent case from the Third Circuit, whereby the court found where a platform provides certain curated choices to viewers, such as via algorithm, any pass through immunity as the neutral publisher becomes effectively compromised. (Anderson v. TikTok, Inc. (3d Cir. 2024) 116 F.4th 180, 182.) Interactive Computer Services “are immunized only if they are sued for someone else's expressive activity or content (i.e., third-party speech), but they are not immunized if they are sued for their own expressive activity or content (i.e., first-party speech).” (Id. at p. 183.) In other words, Plaintiff essentially contends that the Documentary constitutes first party defamatory speech on the basis of editorial decision to publish. (Id. at 184.) The court considers the public policy intent expressed by the California Supreme Court. (Barrett v. Rosenthal, supra, 40 Cal.4th at pp. 48–49; Hassell v. Bird (2018) 5 Cal.5th 522, 541-542.)

“The purpose of this statutory immunity is not difficult to discern. Congress recognized the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium. The imposition of tort liability on service providers for the communications of others represented, for Congress, simply another form of intrusive government regulation of speech. Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum. In specific statutory findings, Congress recognized the Internet and interactive computer services as offering ‘a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.’ Id. § 230(a)(3). It also found that the Internet and interactive computer services ‘have flourished, to the benefit of all Americans, with a minimum of government regulation.’ Id. § 230(a)(4) (emphasis added). Congress further stated that it is ‘the policy of the United States ... to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.’ Id. § 230(b)(2) (emphasis added).” (Zeran v. America Online, Inc. (4th Cir. 1997) 129 F.3d 327, 330.)

Again, in considering CDA immunity, courts will not distinguish liability claims between a “publisher” and “distributor,” when the distribution remains within the realm of publication, even in the case of repeated publication. (Id. at pp. 331-333.) Notice of a purported defamatory statement to the publisher will not waive any CDA immunity. (Id. at p. 333.) The influential Zeran court opinion found a broad swath of immunity reflecting Congressional intent for the CDA to allow continued First Amendment expression while minimizing potential reactive and excessive self-regulation requirements based on fear of liability arising from repeated defamatory statement notices. The CDA especially recognizes such an acute possibility in this age of internet speed and readily available means of repeated forwarding/posting said allegedly defamatory publication materials. (Id. at p. 333.)

The California Supreme Court in considering the issue under the Zeran guidelines established a public policy stance that was careful in describing the CDA as applying to “internet service providers” facilitating the process of others only passing along such information on an internet platform. The court also specifically noted balance of free expression relative to the burden of potential self-imposed regulation based on fear of notice based defamation lawsuit threats simply based on “access to online information.” (Barrett v. Rosenthal, supra, 40 Cal.4th at pp. 50-53, 56-57.) The court however also addressed the distinction with “user” liability.

The statute references “users” in section (c)(2), “No provider or user of an interactive computer service shall be held liable on account of...” but the statute lacks a definition. The court found the plain meaning of user meant any person or entity accessing interactive computer services. (Id. at p. 59.) Defendant can present an argument that it only functions as a “user” or even redistributor of material to YouTube, and whether the publication constitutes active or passive contribution, the mere (re)posting of the Documentary constitutes immune “user” activity. (Id. at pp. 59-62.)

The statute however provides certain definitions:

(2) The term ‘interactive computer service’ means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

(3) Information content provider

The term ‘information content provider’ means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.

47 U.S.C.A. § 230(f)(2-3)

The liability section of the statute carefully distinguishes between the service provider and information “content” provider, of which latter terms appear to remain unaddressed in context of a first person versus third person expression standard. The immunity granted to the platform provider of services, and those that only place material presumably published elsewhere on said forums remains resolute. (Hassell v. Bird (2018) 5 Cal.5th 522, 544 [“[A]n intent to shield Internet intermediaries from the burdens associated with defending against state-law claims that treat them as the publisher or speaker of third party content, and from compelled compliance with demands for relief that, when viewed in the context of a plaintiff's allegations, similarly assign them the legal role and responsibilities of a publisher qua publisher”].) Where the content provider arguably only presents an amalgam of material, third party speech immunity protections apply. (Moody v. NetChoice, LLC (2024) 603 U.S. 707, 744, 144 S.Ct. 2383, 2409, 219 L.Ed.2d 1075 [“[P]resenting a curated and “edited compilation of [third party] speech” is itself protected speech”].) In the case of first party speech, however, the court found a lack of immunity in that the actions of an algorithm, can be characterized as a direct expression of first party speech. (Anderson v. TikTok, Inc. (3d Cir. 2024) 116 F.4th at p. 184 (footnote 12).) The foundational reasoning remains terse, but the analogous logic indicates a budding distinction between curated content via algorithm or by extension human choice, and simple dissemination of information.

The declarations from Wagner-Trugman and Cotton categorically indicates an editorially directed website with specific and voluntary engagement of content screening. [Wagner -Trugman Decl., ¶¶ 4-5. 8-11, Cotton Decl., ¶¶ 4-7.] The mere passing of the content onto the platform would clearly constitute protected activity. An argument can even be made that adhering to certain standards and guidelines also constitutes protected expression. (Moody v. NetChoice, LLC, supra, 603 U.S. at pp. 738-740; Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995) 515 U.S. 557, 569-570 [115 S.Ct. 2338, 2345-2346].) The United State Supreme Court at least in part finds distinction based on the possibility for misattribution of certain content to the platform or location. (Moody v. NetChoice, LLC, supra, 603 U.S. at pp. 730-731 accord Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (2006) 547 U.S. 47 [126 S.Ct. 1297, 164 L.Ed.2d 156]; PruneYard Shopping Center v. Robins (1980) 447 U.S. 74 [100 S.Ct. 2035, 64 L.Ed.2d 741].)

The court finds less clear cut support for immunity given the editorial decision to allow the publication of said Documentary in that it remains unclear as to whether the Documentary was posted as a pass through due to complying with website guidelines as a neutral platform where CDA clearly applies, or as a form of editorial expression, as found in the TikTok algorithm. In other words, the selection of content for operation of a website reflecting cultural interests certainly involves curation. Where the curation reflects an “expressive product” forming a specific identity or position of said platform, the Fifth Circuit at least finds a potential exception under first party expression even if dependent on third party content. (Anderson v. TikTok, Inc. (3d Cir. 2024) 116 F.4th at p. 184.)

The motion itself lacks sufficient address of standards for publication and review. The court declines to categorically find all content on the website was only screened with the intent of presenting divergent views as long as no offensive or other community standards are violated, as opposed to presentation of a specific viewpoint for the point of commercial monetization. The court therefore hesistates to find as a matter of law that the editorial decision constitutes a protected third party act, as opposed to a first party expression of opinion akin to an algorithm presenting content to its targeted audience. The court concludes that Plaintiff establishes a probability of success in that the court, as a matter of law at this stage, finds no basis of immunity under the current record based on Defendant’s presented legal and factual support.

The court otherwise finds Plaintiff sufficiently presents the elements of the defamation claim for purposes of proceeding. The position as to previous publication of certain prior statements neither addresses nor eliminates all claims. The court also finds the claims support libel per se in the operative complaint. (Regalia v. The Nethercutt Collection (2009) 172 Cal.App.4th 361, 368-370.) Plaintiff alleges conduct well beyond the law enforcement issue which implicates character and may be impactful to Plaintiff’s occupation. (Id. at pp. 369-370.)

The court finds no basis of an invalid claim based on the claim of a self-generated defamation action. (Royer v. Steinberg (1979) 90 Cal.App.3d 490, 499.) As addressed above, Plaintiff maintains being thrust, at least in part, into a defensive position following publication. Whether certain statements pre-date certain allegations will not undermine all claims. Nothing in the self-serving declaration of Royes supports this conclusion, and the court refuses to consult YouTube video content as the source of any factual determination (see Req. Jud. Not.).

The court also rejects the free speech discussion as both previously addressed, and due to the tersely supported discussion and lack of address as to the actual defamation standards and curbs on free expression rights. (See Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1045.) The court also declines to consider the “privileged records” position in that the argument relies on inadmissible extrinsic inference requiring improper consideration of truth of certain matters (see Req. Jud. Not.). Further, NOTHING in the record in ANY WAY seeks to present actual content of any ACTUAL police report or even a statement from an actual investigating officer. (See Rall v. Tribune 365 LLC (2019) 31 Cal.App.5th 479, 498-500.)

On opinion, even assuming said statements constitute opinion, again, the selection of only certain limited items will not undermine the validity of the entire complaint. Even considering some of this position, the court questions whether at least that portion of statement two regarding the existence of a wire tap constitutes an opinion or an actual representation of alleged fact, thereby undermining a conclusion of opinion within the “totality of the circumstances.” (Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 260-261.)

Finally, on malice, even assuming Plaintiff is a public figure, other than denial of any awareness of malicious intent by Cotton and Wagner -Trugman, the court declines to make a factual finding of said absence of malice simply based on self-serving conclusions. The circumstances lack sufficient factual context, including the history of the parties and other potential awareness for the basis of the editorial decision to publish. (Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146, 1167.)

The motion is denied in its entirety.

Defendant previously answered the complaint. The court will concurrently conduct the Case Management Conference.

Defendant to provide notice.