Mitchell v. Twin Galaxies ( 2021 )

Filed 10/12/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
WILLIAM JAMES MITCHELL, B308889
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 19STCV12592)
v.
TWIN GALAXIES, LLC,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Gregory N. Alarcon, Judge. Affirmed.
Tashroudian Law Group and David A. Tashroudian for
Defendant and Appellant.
Manning & Kass, Ellrod, Ramirez, Trester, James E.
Gibbons, Steven J. Renick and Anthony J. Ellrod for Plaintiff and
Respondent.
_____________________________
William “Billy” Mitchell brought suit against Twin
Galaxies, LLC for defamation and false light after Twin Galaxies
issued a statement asserting Mitchell’s world record scores in the
Donkey Kong arcade game were not achieved on original
unmodified hardware as required under its rules. As a result, it
removed all of Mitchell’s world record scores and banned him
from participating in its leaderboards. The trial court denied
Twin Galaxies’ special motion to strike under the strategic
lawsuits against public participation statute (anti-SLAPP
motion). (Code Civ. Proc., § 425.16.) Because Mitchell showed a
probability of prevailing on his claims, the trial court properly
denied the anti-SLAPP motion. We affirm the order.
FACTS
Mitchell holds world records in several video games,
including Donkey Kong and Pac-Man. In 1999, Mitchell achieved
the first perfect score in the Pac-Man arcade game and was
recognized as the “Video Game Player of the Century” by
NAMCO, the maker of Pac-Man.
At issue in this case are three of Mitchell’s world record
scores for the arcade game Donkey Kong. For ease of reference,
we refer to them as the “King of Kong score” in which he scored
1,047,200 points on December 28, 2004, the “Mortgage Brokers
score” in which he scored 1,050,200 points on July 14, 2007, and
the “Boomers score” in which he scored 1,062,800 points on July
31, 2010. Mitchell has appeared in several documentaries on
competitive gaming, including a film titled The King of Kong: A
Fistful of Quarters about an opponent’s journey to the world
record score for Donkey Kong.
2
Twin Galaxies was founded by Walter Day in 1982. Day
partnered with videogame adjudicators, such as the International
Video Game Hall of Fame and Guinness World Records, to
facilitate and organize videogame competitions. From 1982 to
2014, Twin Galaxies adjudicated world records through on-site
referees or by video. Video adjudication was introduced in the
1990s so players could participate from their homes remotely.
In 2014, Day sold Twin Galaxies to Jason “Jace” Hall.
Hall is also a well-known figure in the video game industry with
experience in video game design, function, and hardware. Twin
Galaxies operates a website at www.twingalaxies.com, where,
among other things, competitive video game rules are set, player
performances are measured, and records may be viewed and
challenged. The Twin Galaxies website also provides a forum for
members to discuss all things related to video games.
Twin Galaxies publishes leaderboards on its website for
thousands of video game titles across dozens of video game
platforms, including arcade machines, game consoles, and
emulation platforms such as Multiple Arcade Machine Emulator
or M.A.M.E. The leaderboards recognize achievements for high
score or fastest time, and they rank players in those, and other,
categories. Records and rankings appearing on the Twin
Galaxies leaderboards have been used by Guinness World
Records in several Guinness World Records Gamer’s Edition
books and continue to be recognized as world records by the
Guinness organization and others.
Twin Galaxies provides a process to dispute a score
appearing on a leaderboard. Once a score dispute claim is
submitted, it is placed into a public dispute voting forum where
the gaming community will publicly discuss, debate, and vote on
3
the veracity of the claim and present evidence to support or
refute the score.
The Dispute Claim
Jeremy Young, who was registered through the Twin
Galaxies website under the name “Xelnia,” disputed Mitchell’s
King of Kong score, Mortgage Brokers score and Boomers score
(the Disputed Scores). Young claimed the Disputed Scores were
not achieved on original Donkey Kong arcade hardware as
required under the rules. Instead, the Disputed Scores were
achieved on an emulation platform such as the M.A.M.E. system.
Young examined video tapes of the Disputed Scores and found
certain images and anomalies which he asserted could not be
produced by the original Donkey Kong arcade hardware. He
believed those images could only be produced through the use of a
M.A.M.E. system.
Young presented evidence that original Donkey Kong
arcade printed circuit board (PCB) hardware draws the Donkey
Kong levels frame-by-frame with the first frame drawing 1/2
portions of five girders, and the rest of the frames filling in those
girders. Young presented evidence that the Donkey Kong game
on emulation software – that is the game loaded on a computer
other than a PCB – similarly draws the game’s levels frame-by-
frame, but with the first frame drawing three girders, with one
girder having a protruding line which has been nicknamed the
“girder finger.”
Young posted screenshots from video footage of the
Disputed Scores which showed Donkey Kong levels with three
girders in the first frame, with one being the girder finger. There
were other unexplained anomalies and artifacts in the footage
4
which led him to believe the games played in the videos were
inconsistent with original Donkey Kong arcade games.
Twin Galaxies posted digital copies of the video footage on
its website, inviting its community members to investigate and
comment on the dispute claim. It also conducted its own
investigation of Young’s dispute. On April 12, 2018, Twin
Galaxies published the following statement:
“Based on the complete body of evidence presented in this
official dispute thread, Twin Galaxies administrative staff
has unanimously decided to remove all of Billy Mitchell’s
scores as well as ban him from participating in our
competitive leaderboards.
We have notified Guinness World Records of our decision.
On 02-02-2018 Twin Galaxies member Jeremey Young
(@xelnia) filed a dispute claim assertion against the
validity of Billy Mitchell’s historical and current original
arcade Donkey Kong score performances of 1,047,200 (the
King of Kong “tape”), 1,050,200 (the Mortgage Brokers
score), and 1,062,800 (the Boomers score) on the technical
basis of a demonstrated impossibility of original unmodified
Donkey Kong arcade hardware to produce specific board
transition images shown in the videotaped recordings of
those adjudicated performances.
[¶] . . . [¶]
Twin Galaxies has meticulously tested and investigated the
dispute case assertions as well as a number of relevant
contingent factors, such as the veracity of the actual video
performances that the dispute claim assertions rely upon.
In addition to Twin Galaxies’ own investigation into the
dispute case assertions, at least two different 3rd parties
5
conducted their own explorations and came to identical
conclusions.
Most notable was the 3rd party (Carlos Pineiro) that Billy
Mitchell engaged to help examine the dispute case claims
on his behalf, utilizing whatever original equipment Billy
could provide, whose final finding was consistent with Twin
Galaxies investigation and others.
[¶]
Here are our specific findings:
- The taped Donkey Kong score performances of 1,047,200
(the King of Kong “tape”), 1,050,200 (the Mortgage Brokers
score) that were historically used by Twin Galaxies to
substantiate those scores and place them in the database
were not produced by the direct feed output of an original
unmodified Donkey Kong Arcade PCB.
- The 1,062,800 (the Boomers score) Donkey Kong
performance does not have enough of a body of direct
evidence for Twin Galaxies to feel comfortable to make a
definitive determination on at this time.
[¶] . . . [¶]
From a Twin Galaxies viewpoint, the only important thing
to know is whether or not the score performances are from
an unmodified original DK arcade PCB as per the
competitive rules. We now believe that they are not
from an original unmodified DK arcade PCB, and so
our investigation of the tape content ends with that
conclusion and assertion.
[¶]
6
Twin Galaxies has also investigated this matter as
comprehensively as reasonably possible to make sure that
its findings are as informed as possible.
[¶] . . . [¶]
With this ruling Twin Galaxies can no longer
recognize Billy Mitchell as the 1st million point
Donkey Kong record holder.”
The statement was distributed to the public through Twin
Galaxies’ website and social media platforms, where it garnered
media attention from mainstream news outlets such as The New
York Times, The Washington Post, and Variety. The media
reported Twin Galaxies removed Mitchell’s world records and
banned him because he cheated. Mitchell twice demanded a
retraction, which Twin Galaxies denied. After initially stripping
Mitchell of his world records, Guinness World Records reinstated
them on June 18, 2020, after it conducted its own investigation.
The Lawsuit
Mitchell brought suit against Twin Galaxies for defamation
and false light, alleging Twin Galaxies implied he cheated to
achieve his scores. Mitchell further alleged special damages
arose from the defamation because he uses the notoriety
associated with his professional gaming reputation to promote his
hot sauce company, Rickeys’ Hot Sauce.
Twin Galaxies’ anti-SLAPP motion
Twin Galaxies filed an anti-SLAPP motion, contending its
statement arose from protected activity and Mitchell could not
establish a probability of success on each of his causes of action.
In support of its anti-SLAPP motion, Twin Galaxies submitted a
declaration from Hall detailing the company’s investigation of the
7
dispute claim. Hall stated he obtained two sets of copies of the
video tapes for the King of Kong score and the Mortgage Brokers
score from two separate sources previously affiliated with Twin
Galaxies. After he confirmed they were identical, he posted
digital copies of the video tapes to the Twin Galaxies website for
analysis and comment.
A team from Twin Galaxies, including Hall, conducted its
own analysis of the video tapes. The team’s analysis of the tapes
showed the levels drawn in the first frame contained three
girders—and the infamous girder finger. According to Hall, they
tested extensively and could not avoid finding the girder finger in
the two tapes. They also extensively tested gameplay that was
captured directly from an unmodified Donkey Kong arcade PCB
and were never able to capture the levels containing three girders
or the girder finger. From this technical analysis, Twin Galaxies
concluded Young’s dispute claim was valid and issued its
statement.
Mitchell’s Opposition
Mitchell opposed the anti-SLAPP motion and submitted his
own evidence to counter Twin Galaxies’. Mitchell accused Twin
Galaxies of fabricating a dispute to draw attention to the website
and increase revenue. Mitchell stated in a declaration he urged
Hall to interview a number of witnesses, including Walter Day,
the founder of Twin Galaxies, as well as the referees and others
who witnessed his live performances for the Disputed Scores.
He recounted that Hall repeatedly refused to do so and told
Mitchell and Day that he “didn’t care” about any eyewitnesses.
Mitchell described the rules established by Day for the
Mortgage Broker score game. Twin Galaxies assigned two
referees to adjudicate Mitchell’s game in July 2007 at a
8
convention hosted by the Florida Association of Mortgage
Brokers. Day worked with the Senior Engineer at Nintendo to
verify the Donkey Kong hardware was unmodified. After his
examination of the hardware, the Nintendo engineer sent it
directly to the organizers of the convention, who put it into the
Donkey Kong machine and locked it in a hotel room. Mitchell
affirmed he did not have access to the hardware before or after
his performance.
Mitchell achieved the new Donkey Kong record on July 14,
2007. The Twin Galaxies referees documented the score and
confirmed it. The convention organizers then returned the
hardware to the Nintendo Senior Engineer for re-verification.
After he confirmed the hardware remained legitimate, he mailed
it to Mitchell via UPS. Mitchell submitted declarations from the
referees, the organizers, and eyewitnesses at the convention to
attest to these facts.
In 2010, Mitchell attempted the Donkey Kong record once
more at Boomers Arcade in Florida. An original Donkey Kong
arcade machine was provided to Boomers Arcade by a local
arcade machine vendor. Mitchell submitted a declaration from
the vendor attesting to the condition of the machine and that it
contained original unmodified hardware for the world record
attempt. Mitchell further submitted declarations from the Twin
Galaxies referees assigned to adjudicate the Boomers score.
Declarations from the manager of Boomers Arcade and the
vendor’s employee who delivered the Donkey Kong machine
confirmed the machine contained the proper hardware and
settings.
9
Mitchell also challenged the chain of custody of the video
tapes provided to Twin Galaxies. In particular, he asserted one
of the individuals who purportedly held possession of the tapes
for ten years and sent it to Hall indicated in emails he had a
“master plan” to “take [Mitchell] down.” Mitchell also alleged the
video tapes may have been altered because the version of
M.A.M.E. which displays the controversial finger girder was not
available in 2004, when he achieved the King of Kong score.1
Mitchell further questioned the veracity of the video tapes, noting
they did not contain his image or his voice as the video of his
perfect Pac-Man score did.
Twin Galaxies’ Reply
In reply, Twin Galaxies submitted further declarations to
dispute Mitchell’s assertions regarding the chain of custody issue
and Twin Galaxies’ failure to consider eyewitness evidence of the
Disputed Scores.
Twin Galaxies submitted declarations by the individuals
who provided it with the tapes attesting to the authenticity of the
video tapes and that they were not altered in any way. Hall
explained in a second declaration that Twin Galaxies chose not to
solicit any eyewitness evidence because: (1) the King of Kong
score was adjudicated by videotape and there was no evidence of
a live performance; (2) Mitchell never asked Hall to interview
anyone specifically; (3) no one posted any evidence on the
Twin Galaxies website regarding a live performance prior to the
1 Twin Galaxies objected to this evidence below on the
grounds it lacks foundation and is unreliable. It contends the
trial court erroneously overruled these objections. Twin Galaxies,
however, fails to provide factual or legal support for its
contention of error. We therefore consider the issue waived.
(In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337.)
10
April 12, 2018 statement; and (4) evidence of the live
performances was irrelevant to the dispute because the dispute
related solely to whether the gameplay captured on the
videotapes was from an original unmodified Donkey Kong PCB.
Additional exhibits and declarations were also submitted to
address other factual issues raised in Mitchell’s opposition.2
Mitchell’s Sur-reply
The trial court granted Mitchell’s request to submit a sur-
reply to address the new evidence. Mitchell argued Twin
Galaxies’ new evidence was irrelevant and immaterial to the
anti-SLAPP motion. He also disputed the factual assertions
contained in Twin Galaxies’ reply declarations. In particular,
he submitted declarations contradicting evidence that the video
tapes relied on by Twin Galaxies originated from Mitchell, Todd
Rogers (one of the referees for the Mortgage Broker score and the
Boomers score), and Walter Day.
The Trial Court’s Order
In addition to the anti-SLAPP motion, Twin Galaxies
moved for an order requiring Mitchell to post an undertaking
pursuant to Code of Civil Procedure section 1030, subdivision (a)
because he is an out-of-state litigant and there is a reasonable
possibility Twin Galaxies will obtain judgment in the action or
special proceeding. (Civ. Proc. Code, § 1030.) The trial court
denied the anti-SLAPP motion but granted the motion for
2 The parties submitted extensive evidence in connection
with the anti-SLAPP proceedings. We set forth the evidence
which we feel is necessary to our determination of this appeal.
We exclude the remainder of the evidence relied on by the parties
because it only serves to underscore our observation that there
exist many factual disputes in this case which may not be
resolved on review of an anti-SLAPP ruling.
11
undertaking, ordering Mitchell to post a bond in the amount of
$81,225. Twin Galaxies appealed.
DISCUSSION
The parties agree, as do we, that Mitchell’s claims for
defamation and false light arise from protected activity and meet
the first prong of the anti-SLAPP analysis. We therefore focus on
the second prong: whether Mitchell has shown a probability of
prevailing on his claims. Twin Galaxies contends Mitchell has
not provided sufficient evidence to show the challenged statement
was false or it made the statement with actual malice. We are
compelled by the standard of review, however, to conclude
Mitchell has demonstrated the requisite “minimal merit” to his
claims to defeat Twin Galaxies’ anti-SLAPP motion. (Soukup v.
Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291
(Soukup).)
A. The Anti-SLAPP Statute
The Legislature enacted the anti-SLAPP statute to address
the societal ills caused by meritless lawsuits filed to chill the
exercise of First Amendment rights. (Code of Civ. Proc., § 425.16,
subd. (a).) The statute accomplishes this by providing a special
procedure for striking meritless, chilling claims at an early stage
of litigation. (See Code of Civ. Proc., § 425.16, subd. (b)(1);
Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055–1056.)
The anti-SLAPP statute establishes a two-step procedure to
determine whether a claim should be stricken. In the first step,
the court decides whether the movant has made a threshold
showing that a challenged claim arises from statutorily defined
protected activity. (Rusheen v. Cohen, supra, 37 Cal.4th at
p. 1056.) Once the threshold showing has been made, the burden
shifts to the plaintiff to demonstrate a probability of prevailing on
12
his claims. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.)
To show a probability of prevailing, the opposing party must
demonstrate the claim is legally sufficient and supported by a
sufficient prima facie showing of evidence to sustain a favorable
judgment if the evidence it has submitted is credited. (Zamos v.
Stroud (2004) 32 Cal.4th 958, 965.)
“ ‘In deciding the question of potential merit, the trial court
considers the pleadings and evidentiary submissions of both the
plaintiff and the defendant ([Code Civ. Proc.,] § 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. [Citation.]’ [Citations.]” (Taus
v. Loftus (2007) 40 Cal.4th 683, 714 (Taus).) We accept as true
the evidence favorable to the plaintiff. A plaintiff must establish
only that the challenged claims have minimal merit to defeat an
anti-SLAPP motion. (Soukup, supra, 39 Cal.4th at p. 291.)
We review the denial of an anti-SLAPP motion de novo.
(Park v. Board of Trustees of California State University (2017)
2 Cal.5th 1057, 1067.)
B. Defamation and False Light
“Defamation is the intentional publication of a statement of
fact that is false, unprivileged, and has a natural tendency to
injure or that causes special damage.” (Grenier v. Taylor (2015)
234 Cal.App.4th 471, 486.) If the person defamed is a public
figure, he must show, by clear and convincing evidence, that the
defamatory statement was made with actual malice—that is,
with knowledge that it was false or with reckless disregard of
whether it was false. (Reader’s Digest Assn. v. Superior Court
13
(1984) 37 Cal.3d 244, 256 (Reader’s Digest); New York Times Co.
v. Sullivan (1964) 376 U.S. 254, 285–286.) Mitchell concedes he
is a “limited” public figure for purposes of the anti-SLAPP
proceedings who is required to show actual malice to prevail.
In evaluating whether a plaintiff has made a prima facie
showing of actual malice, “we bear in mind the higher clear and
convincing standard of proof.” (Robertson v. Rodriguez (1995) 36
Cal.App.4th 347, 358.) By contrast, the law does not require a
plaintiff to prove the element of falsity by clear and convincing
evidence, only by a preponderance of the evidence. (Christian
Research Institute v. Alnor (2007) 148 Cal.App.4th 71, 76 (Alnor).)
“ ‘False light is a species of invasion of privacy, based on
publicity that places a plaintiff before the public in a false light
that would be highly offensive to a reasonable person, and where
the defendant knew or acted in reckless disregard as to the
falsity of the publicized matter and the false light in which the
plaintiff would be placed.’ ” (Jackson v. Mayweather (2017) 10
Cal.App.5th 1240, 1264.) “To establish a false light claim based
on a defamatory publication, a plaintiff ‘must meet the same
requirements’ as for a defamation claim.” (Balla v. Hall (2021)
59 Cal.App.5th 652, 687.)
C. Mitchell Made a Prima Facie Showing of Falsity
Twin Galaxies contends Mitchell failed to demonstrate its
statement was false and therefore cannot show a probability of
prevailing. To meet his burden, Mitchell relies on his own
declaration and others’ declarations attesting to the equipment
used. We conclude Mitchell has met his burden.
14
As to the King of Kong score, Mitchell stated he achieved
the score on a machine at the showroom of Arcade Game Sales.
Robert Childs, the owner of Arcade Game Sales, affirmed only
original unmodified hardware was used in its Donkey Kong
machines. He stated, “There is no possibility that [Mitchell’s]
1,047,200 score (the King of Kong ‘tape’) occurred on anything
but original unmodified hardware . . . .” Mitchell further
submitted evidence that the M.A.M.E. version that produces the
girder finger found by Twin Galaxies and others on the videotape
was not available until 2007, three years after the King of Kong
score was achieved. This evidence would support a finding the
videotape may have been altered and may be unreliable.
As to the Mortgage Brokers score, Mitchell provided a
detailed description (see ante) of the procedure established by
Day to ensure the hardware was unmodified and Mitchell did not
have access to it, including that the Senior Engineer at Nintendo
verified the hardware both before and after the record was
achieved. In support, Mitchell submitted declarations from Day,
the referees, the organizers, and other eyewitnesses at the
convention.
As to the Boomers score, Mitchell submitted a declaration
from the vendor of the machine he used attesting to the condition
of the machine and that it contained original unmodified
hardware. Declarations from the Twin Galaxies referees, the
manager of Boomers Arcade, and the vendor’s employee also
attested to the machine’s original unmodified hardware.
15
Twin Galaxies disputes the relevance of the evidence
provided by Mitchell, asserting it focuses on the live
performances rather than the videotapes on which Twin
Galaxies’ analysis is based. Twin Galaxies contends Mitchell
misconstrues its paragraphs-long statement removing all of
Mitchell’s scores from its leaderboards and banning him from
participating in them in the future. It argues its statement is
limited to a finding that the videotape recordings of the King of
Kong score and the Mortgage Broker score performances “that
[are] historically used by Appellant to substantiate the score and
place it in the score database was not produced by the direct feed
output of an original unmodified arcade PCB.” In short, Twin
Galaxies confines its investigation and its statement to whether
the video tapes for those two scores show anomalies, including
the infamous finger girder, that cannot be produced from original
Donkey Kong arcade hardware. It contends Mitchell failed to
prove the falsity of that narrowly interpreted statement because
Mitchell’s evidence relates to the live performances only and he
provides no evidence to show the gameplay recorded on the video
tapes was from an original unmodified machine.
We do not agree that Twin Galaxies’ statement is limited to
a finding that the video recordings of the Mortgage Brokers score
and the King of Kong score show they were not achieved on
original unmodified Donkey Kong hardware. If Twin Galaxies’
findings were limited to only those two scores, it would not have
removed all of Mitchell’s scores from its leaderboards, including
the Boomers score, about which it did not make a definitive
determination, and all other scores which were not subject to
investigation. We interpret Twin Galaxies’ statement as the
media and Mitchell did: it accused Mitchell of cheating to achieve
16
his world record scores. Accordingly, Mitchell was not limited to
the video tape evidence for those two scores.
In any case, the video tapes and the live performances
purportedly reflect the same gameplay and the same games.
Twin Galaxies’ argument rests on an assumption the video tape
recordings of the Disputed Scores override any eyewitness
declarations or other evidence. It essentially seeks to have us
judge the probative value of competing evidence. We decline to
do so because we do not weigh the credibility or comparative
probative strength of competing evidence at this stage of the
proceedings. (Taus, supra, 40 Cal.4th at p. 714.) Given the
standard of review, we conclude Mitchell has met his burden to
set forth prima facie evidence of falsity.
Even if we narrowly construe the challenged statement in
the manner suggested by Twin Galaxies, its argument ignores
Mitchell’s chain of custody evidence that raises the possibility
that the video tapes do not accurately portray his gameplay for
the two scores, including that the video tapes are not originals,
that they do not show his face or voice, that one of the individuals
who provided the videos to Hall expressed bias against Mitchell
and had a motive to alter the tapes, and that the version of
M.A.M.E. that produces the finger girder was not available until
2004, after the King of Kong score was achieved. Again, we may
not weigh the credibility or comparative probative strength of
competing evidence; we must accept as true the evidence
favorable to Mitchell. (Soukup, supra, 39 Cal.4th at p. 291.)
Twin Galaxies’ evidence does not prove the truth of its statement
as a matter of law such that it negates Mitchell’s evidence.
17
D. Mitchell Made a Prima Facie Showing of Actual
Malice
Twin Galaxies also argues Mitchell failed to present
sufficient evidence that it made the challenged statement with
actual malice, bearing in mind the higher clear and convincing
standard of proof. (Conroy v. Spitzer (1999) 70 Cal.App.4th 1446,
1451–1452.) We conclude Mitchell has made the requisite
showing.3
1. Legal Principles
The existence of actual malice turns on the defendant’s
subjective belief as to the truthfulness of the allegedly false
statement. (Reader’s Digest, supra, 37 Cal.3d at p. 257; Alnor,
supra, 148 Cal.App.4th at pp. 84–85.) Actual malice may be
proved by direct or circumstantial evidence. Factors such as
failure to investigate, anger and hostility, and reliance on sources
known to be unreliable or biased “may, in an appropriate case,
indicate that the publisher himself had serious doubts regarding
the truth of his publication.” (Reader’s Digest, supra, 37 Cal.3d
at pp. 257–258.) However, any one of these factors, standing
alone, may be insufficient to prove actual malice or raise a triable
issue of fact. (Id. at p. 258.)
In Antonovich v. Superior Court (1991) 234 Cal.App.3d
1041, 1052–1053 (Antonovich), the defendant won an election to
the county board of supervisors. In a later election, he accused
his opponent, who had been the incumbent in the first election, of
3 In its reply brief, Twin Galaxies contends the common
interest privilege applies in this case. Not so. Civil Code section
47, subdivision (c), expressly states that the common interest
privilege applies to communications made “without malice.”
Here, Mitchell made a prima facie showing of actual malice.
18
shredding and destroying files prior to the transfer of office
because the cabinets were empty when he arrived at the office.
He continued to make this accusation even after the opponent
offered proof that the files existed and their respective staff
members had met prior to the transition to discuss the
organization of the files. There was no evidence the defendant
took any steps to inquire into the truth of his opponent’s
statements even though the opponent offered to submit his proof
for the defendant’s inspection. (Id. at p. 1053.) The Court of
Appeal found the trier of fact was entitled to conclude the
defendant’s “ ‘inaction was a product of a deliberate decision not
to acquire knowledge of facts that might confirm the probable
falsity of [the subject] charges,’ which amounts to a ‘purposeful
avoidance of the truth’ ” so as to support a finding of actual
malice. (Ibid.)
2. Analysis
As in Antonovich, there is prima facie evidence of a similar
decision to avoid facts that might confirm the probable falsity of
the challenged statement. The record contains evidence that Hall
failed to investigate facts tending to show the Disputed Scores
were legitimately achieved on unmodified hardware despite Day’s
and Mitchell’s attempts to convince him to do so.
On March 13, 2018, Day encouraged Hall to interview
eyewitnesses and investigate the conclusion reached by the
Senior Engineer from Nintendo. Hall refused. Instead, Hall
asked, “How will you feel when I announce that Billy cheated?”
Because this call occurred during the time Twin Galaxies was
reportedly conducting its investigation, Day believed Hall had
predetermined Mitchell’s culpability.
19
Mitchell also unsuccessfully attempted to convince Hall to
conduct further investigation from February to April 2018.
During a February 24, 2018 telephone conversation, he urged
Hall to interview Twin Galaxies personnel and eyewitnesses but
Hall refused, saying he “doesn’t care what anybody says.” Hall
again stated he “didn’t care” after Mitchell described the
verification of the hardware with Nintendo’s Senior Engineer and
that Mitchell lacked access to the hardware before and after the
Mortgage Brokers score. Hall repeatedly refused to interview
witnesses suggested by Mitchell in phone calls and texts in
March and April 2018, stating “it doesn’t matter” and he “didn’t
care.” Hall’s own statements that he “didn’t care” about evidence
relevant to the hardware used by Mitchell may support a finding
of a “ ‘purposeful avoidance of the truth.’ ” (Antonovich, supra,
234 Cal.App.3d at p. 1053.)
Even when Twin Galaxies contacted one of the referees to
the Mortgage Brokers and Boomers scores,4 the questions asked
did not appear to be intended to elicit the truth. The referee was
asked, in a text, whether there were “any shenanigans around
any of Billy Mitchell’s scores?” The referee responded,
“Perhaps . . . [I] mean anything is possible . . . but thats exactly
why [I] called him out on things . . . just to make him prove right
in front of me that there would be no questions.” Hall then
continued to press the referee, asking whether any of Mitchell’s
submitted scores were not achieved. Again, the referee
equivocated, “I cannot say . . . simply because [I’ve] seen him
play . . . .” Hall further asked whether Day would have been
4 The other referee confirmed Twin Galaxies did not contact
her regarding her adjudication of the Mortgage Brokers score or
Boomers score.
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aware of “shenanigans.” The referee responded that Day
“sometimes is oblivious” but would have spoken up and not
defended Mitchell if he knew the scores were invalid. Hall’s
pointed questions do not suggest an attempt to determine the
truth but an effort to direct the answer. This referee later
attested to the accuracy of the Disputed Scores in his declaration
in support of Mitchell’s opposition to the anti-SLAPP motion.
For purposes of an anti-SLAPP motion, we accept this
evidence as true. (Soukup, supra, 39 Cal.4th at p. 291.) Just as
in Antonovich, Twin Galaxies failed to take any steps to inquire
into the truth of Mitchell’s statements even after he was provided
the names of witnesses and Day confirmed the procedures under
which the Disputed Scores were achieved.
The record also shows Twin Galaxies may have relied on
biased sources to reach its conclusion. For example, the
individual who provided Hall with copies of the videotapes for the
King of Kong score and the Mortgage Brokers score indicated he
had a “master plan” to “take [Mitchell] down.” Mitchell also
attested to the animosity of the third party investigator working
on behalf of Twin Galaxies, including his publicly expressed
conclusion that Mitchell was guilty before the investigation
began. An inference of actual malice may be made from Twin
Galaxies’ failure to investigate and reliance on biased sources.
(Alnor, supra, 148 Cal.App.4th at pp. 84–85.)
Twin Galaxies argues the evidence shows it held a good
faith belief in the truth of its statement and thus did not publish
with actual malice, citing to its extensive testing of the original
hardware and the actual converter board used to record the
Disputed Scores. Twin Galaxies further argues it held a good
faith belief in the truth of its statement because three other
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groups reached the same conclusion as it did, including Young,
Chris Gleed, and Carlos Pineros.5 According to Twin Galaxies,
the fact that it and others could not avoid the girder finger during
testing was dispositive and could only lead to the conclusion
reached in its statement—that the King of Kong and the
Mortgage Brokers scores “were not produced by the direct
feed output of an original unmodified Donkey Kong
Arcade PCB. [Emphasis in original.]”
As a result, Twin Galaxies excuses its failure to investigate
Mitchell’s evidence on the ground the witnesses to the live
performance have no bearing on the technical nature of Young’s
dispute claim. According to Twin Galaxies, the only issue in
dispute is whether the videotape recordings of the King of Kong
score and the Mortgage Brokers score could have come from
original unmodified Donkey Kong hardware. Neither the
eyewitness testimony nor the Senior Engineer’s verification was
relevant to that precise issue.
We reject this narrow interpretation of the challenged
statement for the same reasons discussed above. Again, Twin
Galaxies relies on competing evidence to argue a lack of actual
malice. Again, we conclude we may not weigh the credibility or
comparative probative strength of competing evidence. (Taus,
supra, 40 Cal.4th at p. 714.) Even bearing in mind the higher
clear and convincing standard of proof for actual malice, our
review is limited to whether Twin Galaxies’ evidence
5 The parties dispute whether Chris Gleed worked on behalf
of Twin Galaxies and whether Carlos Pineros worked on behalf of
Mitchell. This factual dispute does not affect our analysis
because we do “ ‘not weigh the credibility or comparative
probative strength of competing evidence . . . .’ ” (Taus, supra,40 Cal.4th at p. 714.)
22
demonstrates Mitchell cannot prevail as a matter of law. (Alnor,
supra, 148 Cal.App.4th at p. 84.) We conclude the motion was
properly denied because Twin Galaxies’ evidence does not defeat
as a matter of law Mitchell’s prima facie evidence in support of
his claims.
Neither are we persuaded by the cases cited by Twin
Galaxies—Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146(Annette F.) and Rosenaur v. Scherer (2001) 88 Cal.App.4th 260(Rosenaur). In both cases, the defendants were not alerted to any
potential falsity in their statements prior to publication.
In Annette F., the plaintiff introduced no evidence to contradict
the defendant’s declaration that she held a good faith belief in the
truthfulness of her statement. (Annette F., at p. 1169.)
In Rosenaur, the defendants relied in good faith on public records
to make their statement and were not aware of any information
that could contradict what was contained in the public records.
(Rosenaur, at pp. 272, 276.) Here, there is ample evidence that
Twin Galaxies was alerted to potential contradictory facts.
Because we conclude Mitchell’s defamation claim survives
the anti-SLAPP motion, his false light claim stands as well.
(Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th
1359, 1385, fn. 13 [false light claim “stands or falls on whether it
meets the same requirements as the defamation cause of
action.”].)
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DISPOSITION
The order denying Twin Galaxies’ anti-SLAPP motion is
affirmed. Mitchell is awarded his costs on appeal.
CERTIFIED FOR PUBLICATION
OHTA, J.*
We Concur:
GRIMES, Acting P. J.
STRATTON, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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