Todd v. Lovecruft ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 10 PETER TODD, Case No. 19-cv-01751-DMR 11 Plaintiff, ORDER ON DEFENDANT'S SPECIAL 12 v. MOTION TO STRIKE 13 ISIS AGORA LOVECRUFT, Re: Dkt. No. 20 14 Defendant. 15 On April 3, 2019, Plaintiff Peter Todd filed a complaint asserting diversity jurisdiction and 16 alleging a state law claim for defamation against Defendant Isis Agora Lovecruft.1 [Docket No. 1 17 (“Compl.”).] On July 15, 2019, Lovecruft filed this motion to strike the complaint pursuant to 18 California’s anti-SLAPP statute, California Code of Civil Procedure § 425.16 et seq. [Docket Nos. 19 20 (“Mot.”), 31 (“Reply”).] Todd timely opposed. [Docket No. 23 (“Opp.).] The court heard oral 20 argument. Following the hearing, the court ordered supplemental briefing, which the parties filed 21 on September 12, 2019 and September 19, 2019. [Docket Nos. 49-52.] Having considered the 22 parties’ briefing and submissions, Lovecruft’s motion is granted in part and denied in part. I. BACKGROUND 23 A. The Parties 24 The following facts are taken from the record. Where indicated, the court cites allegations 25 in the complaint to provide background information. Todd is a developer of cryptocurrency and 26 27 1 blockchain software. Compl. ¶ 15; Docket No. 24, Declaration of Peter Todd in Opposition to 2 Motion to Strike (“Todd Decl.”) ¶ 2. He also works as an applied cryptography consultant. Compl. 3 ¶ 1. Todd regularly speaks at conferences around the world regarding his work in cryptography. Id. 4 ¶¶ 1, 17. He has a large online following, and regularly posts to his account on Twitter under the 5 handle @peterktodd. Id. ¶ 19. Todd avers that he is “highly-regarded in the cryptography and 6 cryptocurrency sectors” and that his reputation, including his online reputation, “are important 7 aspects of his standing in the cryptography community and his ability to maintain his consulting 8 profession.” Id. ¶¶ 16, 19. Lovecruft is a cryptographer and computer security expert. Lovecruft Decl. ¶ 2. They 9 provide “expertise and consultancy services to clients,” and attend and speak at conferences 10 centering around cryptography, digital privacy, and security. Id. Lovecruft formerly worked as a 11 senior developer for the Tor Project, a non-profit digital privacy organization. Id. Todd and 12 Lovecruft met in summer 2014 and have been acquaintances for years. Compl. ¶¶ 3, 24; Lovecruft 13 Decl. ¶ 3. They sometimes attend the same conferences and have interacted at these events. Compl. 14 ¶¶ 23, 26; Lovecruft Decl. ¶ 3. Between 2014 and 2016, Todd and Lovecruft “spent time together 15 socially on a few occasions” and also communicated with each other online. Compl. ¶¶ 27-28; 16 Lovecruft Decl. ¶ 3. Lovecruft states that, prior to the events that gave rise to the current lawsuit, 17 they considered Todd a “professional acquaintance, but not a close friend.” Lovecruft Decl. ¶ 3. 18 According to Lovecruft, the parties have never been in a sexual or romantic relationship. Id. Todd 19 characterizes the parties’ early relationship as a friendship. Todd Decl. ¶ 8. 20 B. Fall 2014 Encounter 21 Lovecruft claims that in 2014, Todd “began making explicit, verbal sexual advances toward 22 [them] during conferences and meetings” and “typically did so quietly in order to not be heard by 23 others present.” Lovecruft Decl. ¶ 4. Lovecruft “expressly and repeatedly informed him that his 24 advances were unwelcome” but his behavior continued. Id. According to Lovecruft, Todd sent an 25 email in September 2015 inviting them to meet in-person to discuss a security question. Id. ¶ 5. 26 Lovecruft agreed and met Todd at the Workshop Café in San Francisco. Id. Lovecruft testifies that 27 Todd repeatedly interrupted the meeting to make “explicit, verbal sexual advances” which they 1 found “offensive and degrading.” Id. ¶¶ 5-6. Lovecruft left the meeting, telling Todd that they were 2 going to get food, and Todd followed without an invitation. Id. ¶ 7. According to Lovecruft, the 3 parties ordered food at a taqueria, and then Lovecruft attempted to walk away. Id. ¶ 8. Lovecruft 4 claims that Todd continued to follow and make sexual advances despite Lovecruft’s repeated 5 refusals. Id. At some point, Todd allegedly told Lovecruft that they were going back to his hotel 6 and grabbed Lovecruft’s arm. Id. Lovecruft shoved him away and told him, “I’m going home, 7 don’t follow me.” Id. Lovecruft avers that Todd then stopped following them. Id. 8 Lovecruft states that the encounter left them upset and angry, and that they “walked randomly and aimlessly around San Francisco for several hours” to collect themself and make sure 9 that Todd had stopped following them. Lovecruft Decl. ¶ 9. After that event, Lovecruft began 10 avoiding Todd, such as by lying to him about their whereabouts when he would attempt to make 11 contact. Id. ¶ 10. In December 2018, Lovecruft privately told another individual about Todd’s 12 sexual advances, but did not publicize the accusations at the time “in order to avoid further personal 13 tension or professional drama.” Id. ¶¶ 13-14, see id., Ex. 2 (Twitter direct message dated December 14 5, 2018). 15 Todd disputes Lovecruft’s account of their encounter in San Francisco. He states that he 16 was in San Francisco in August 2015, not September as Lovecruft claims. Todd Decl. ¶ 14. He 17 confirms they met in the Workshop Café during that visit. Id. ¶ 15. He says that the parties “briefly 18 discussed computer code” and that when the café closed, they went to a taqueria together. Id. He 19 testifies that the two of them ate together in the public courtyard of the Social Security 20 Administrative building and discussed personal and professional matters while they ate. Id. 21 Lovecruft fed spare nachos to rats. Id. After they finished eating, Lovecruft allegedly hailed a cab, 22 stating they were going home, and Todd walked to a friend’s house where he was staying. Id. He 23 contends that during this time, he “made no sexual statements to Lovecruft or anybody else” and 24 “did not initiate any physical contact with Lovecruft.” Id. According to Todd, the parties regularly 25 communicated with each other publicly and privately after this interaction, and that Lovecruft’s 26 communications with him “reflected no fear or dislike.” Id. ¶ 16. Two days after the event, 27 Lovecruft allegedly invited him to the beach and also their apartment to watch cartoons and drink 1 alcohol. Id. Within the following months, Lovecruft allegedly interacted with Todd and invited 2 him to “hang out” when they attended a conference in Germany in September and October 2015. 3 Id. ¶ 18. After that time, the parties allegedly continued to communicate about a variety of personal 4 and professional topics. Id. ¶ 19. 5 C. The Applebaum Controversy 6 Lovecruft maintains a Twitter account and has over 20,000 followers. Compl. ¶¶ 29, 43. 7 They claim that in late May 2016, other individuals began making allegations of sexual assault 8 against a third party, Jacob Applebaum, a cryptography expert who also worked for the Tor Project. Id. ¶ 29; Lovecruft Decl. ¶ 15. Lovecruft publicly called for accountability for Applebaum and 9 “participated in the broader discussions around predatory male behavior” in the cryptography field. 10 Lovecruft Decl. ¶ 15. On June 15, 2016, Lovecruft allegedly tweeted that Applebaum had sexually 11 assaulted them. Compl. ¶ 29. They also published an internet post documenting their experience 12 with Applebaum. Lovecruft Decl. ¶ 15; id., Ex. 3 (internet posting dated June 13, 2016). Lovecruft 13 claims that they have been subjected to “extensive and ongoing harassment and threats” because of 14 their public statements about Applebaum. Id. ¶ 16; id., Ex. 7 (tweet dated October 11, 2016). 15 Todd claims that he initially published statements to Lovecruft “commending [them] on 16 [their] bravery and denouncing sexual violence.” Compl. ¶ 30. Then in August 2016, Todd tweeted 17 that he “did not know what was true regarding [Lovecruft’s] and other’s allegations against 18 Applebaum.” Id. ¶ 41; Lovecruft Decl., Ex. 8 (tweets by Todd dated June 9, 2016 and June 26, 19 2016). He also tweeted, “See, as a relative outsider to that community I can’t tell what is true and 20 what isn’t. That’s a big problem.” Todd Decl. ¶ 22; id. Ex. E (tweet dated August 18, 2016). 21 Around that same time, Lovecruft allegedly blocked Todd from viewing their Twitter profile. 22 Compl. ¶ 32. 23 In May 2017, Todd communicated with Lovecruft through Github, a “professional platform 24 designed for public software development.” Compl. ¶ 33. He claims that he asked Lovecruft a 25 question about a software programming issue. Id. ¶ 33. Lovecruft responded as follows: 26 First things first: @petertodd, you’ve publicly, repetitively defended a man 27 who raped me and several other people, and disparaged the victims who as an excuse to speak to me. 1 2 Id. ¶ 34; Lovecruft ¶ 18. Todd claims that he did not initiate any contact, in-person or online, with 3 Lovecruft after this exchange. Id. ¶ 35.2 4 D. Doe Allegations 5 In July 2017, Lovecruft told Brian Wilcox, a friend and fellow cryptographer, about their 6 negative experiences with male predatory behavior in the cryptography community. Lovecruft 7 Decl. ¶ 19. Wilcox testifies that he has personally witnessed Todd making unwelcome sexual 8 advances on women. [Docket No. 20-2, Declaration of Brian Wilcox in Support of Motion to Strike 9 (“Wilcox Decl.”) ¶ 4.] He confirms that Lovecruft told him that Todd harassed and intimidated 10 them. Id. ¶ 5. Around February 2018, Wilcox connected Lovecruft with two women who reported 11 that Todd had engaged in sexual misconduct toward them. Id. ¶ 7; Lovecruft Decl. ¶ 20. One 12 woman, anonymously identified as Jane Doe, reached out to Lovecruft over the Signal messaging platform. Lovecruft Decl. ¶ 20. 13 Doe submitted a partially redacted anonymous declaration confirming this conversation. 14 [Docket No. 30-3, Declaration of Jane Doe in Support of Motion to Strike (“Doe Decl.”).] 15 Lovecruft’s counsel Ben Rosenfeld testifies that he personally spoke to Doe and prepared the 16 declaration on her behalf. [Docket No. 20-4, Declaration of Ben Rosenfeld in Support of Motion to 17 Strike (“Rosenfeld Decl.”) ¶ 2.] Lovecruft initially filed the declaration with their motion, and the 18 signature line was endorsed by the declarant as Jane Doe. [Rosenfeld Decl., Ex. A.] They later 19 filed an administrative motion to seal the declaration because portions of it, specifically the name 20 of the city in which the events described occurred, could potentially identify the anonymous 21 declarant. [Docket No. 22.] Lovecruft filed a slightly modified version of the declaration on reply.3 22 23 2 Applebaum submitted a declaration in support of Todd’s opposition to this motion. [Docket No. 25.] Applebaum describes his own experiences as a “target” of Lovecruft’s defamation. Applebaum 24 is not a party; therefore, his assertions about being defamed by Lovecruft are not relevant to this motion. To the extent Todd offers Applebaum’s declaration as evidence to support that Lovecruft 25 acted with malice in making defamatory statements about Todd, the court, without ruling on the admissibility of Applebaum’s statement for that purpose, finds that it need not consider 26 Applebaum’s proffered evidence to rule on this motion, as discussed below in the analysis of Lovecruft’s state of mind. Finally, the court cannot consider Applebaum’s declaration to the extent 27 it is offered to attack Lovecruft’s credibility. See Overstock.com, Inc. v. Gradient Analytics, Inc., 1 This version contains a redaction as to the name of the city in which the alleged encounter took 2 place and the redacted name and signature of the declarant.4 3 On February 15, 2018, Lovecruft and Doe allegedly discussed their mutual experiences with 4 Todd. Lovecruft Decl. ¶ 20; Doe Decl. ¶ 3. During that conversation, Doe explicitly told Lovecruft 5 that Todd had raped her. Doe Decl. ¶ 3. She informed Lovecruft that she and Todd met in Germany. 6 Id. Doe states that she suffers from a neurological sleep disorder and was also sleep deprived on 7 the day that she met with Todd. Id. While she and Todd were walking together, her knees buckled 8 as she began experiencing symptoms of her disorder. Id. She told Todd the symptoms he could expect to see, such as cognitive defects and temporary paralysis, and Todd suggested they go to the 9 nearest hotel for her to sleep off the symptoms. Id. Doe testifies that she went up to Todd’s room 10 and attempted to sleep on the couch so as not to send Todd any “wrong signals,” but he “physically 11 crowded [her] and badgered [her] into sleeping in his bed.” Id. Once Doe laid down on the bed, 12 Todd allegedly got into bed next to her. Id. She states that she fell asleep and woke up sometime 13 later, still under effects of her sleep condition. Id. She let Todd take her to dinner, after which she 14 felt “a sense of obligation to hang out with him a little longer because he had paid for dinner.” Id. 15 They went back up to his hotel room, where Doe testifies that Todd “began pushing [her] physical 16 boundaries” again, although she attempted to leave several times. Id. She states that she realized 17 she could not leave and gave up resisting, and that she “consider[s] what happened next rape.” Id. 18 Doe told Lovecruft that she locked herself in the bathroom afterward and cried for hours. Id. She 19 also told Lovecruft that she had heard accounts from three or four other people who experienced 20 sexual harassment by Todd. Lovecruft Decl. ¶ 21. 21 Lovecruft states that they believed Doe’s account of the incident for several reasons. First, 22 Lovecruft states that they “believe rape victims,” citing to reports and studies by “the BBC, FBI 23 [and] CDC” that conclude that false rape allegations make up as low as 1.5% of all rape allegations. 24 Lovecruft Decl. ¶ 22. Lovecruft also represents that they believed Doe because Doe provided 25 26 declarant’s name redacted. 27 1 “extensive details of her encounter” with Todd; because Doe corroborated the stories Lovecruft had 2 heard from others about Todd; and because of Lovecruft’s own experience with Todd and 3 similarities between their encounters. Id. Lovecruft admits that they made each of the statements 4 quoted in the complaint, and that they continue to believe the truth of each statement. Id. ¶ 25. 5 E. The Statements 6 Todd identifies Wilcox as the founder and CEO of Zcash, a cryptocurrency business, and 7 states that Lovecruft has done work for that business. Todd Decl. ¶ 24. On May 14, 2018, Todd 8 published a tweet criticizing the security of Zcash. Id. ¶ 25; id., Ex. G (tweet dated May 14, 2018). Within hours of Todd’s tweet, Lovecruft tweeted: 9 10 peter todd is complete trash, and not just for his idiotic takes on privacy and security, he’s also an abuser who doesn’t seem to understand the word ‘no’ 11 and harasses rape victims (and he’s managed to be the only person I’ve ever had to block on github). 12 Id., Ex. H (tweet dated May 14, 2018). Todd testifies that he criticized Zcash again on February 5, 13 2019. Id. ¶ 27; id., Ex. I (tweets dated February 5, 2019). 14 Within the same month, Lovecruft made four statements (the “Statements”) on their Twitter 15 feed that accused Todd of committing sexual misconduct and rape against Lovecruft and others. 16 Compl. ¶¶ 36-39. On February 5, 2019, the same day Todd posted the second criticism of Zcash, 17 Lovecruft tweeted: 18 This is not even touching upon the stories of the rape and assault survivors 19 of you and @petertodd and @ioerror [Applebaum’s Twitter account] and you all have been seen to behave conveniently alike and seen to dutifully 20 protect one another [upside-down smiley face emoji]. 21 Id. ¶ 36; Todd Decl., Ex. A. Upon viewing the tweet in the context of the relevant portions of 22 Lovecruft’s Twitter feed, it becomes clear that the “you” in “rape and assault survivors of you” is 23 third party Nadim Kobeissi, who submitted a declaration attesting that Lovecruft falsely accused 24 him of engaging in sexual misconduct toward Lovecruft and others. [Docket No. 27, Declaration 25 of Nadim Kobeissi in Opposition to Motion to Strike (“Kobeissi Decl.”) ¶¶ 6-10.]5 However, this 26 tweet also refers to Todd and Applebaum. Lovecruft tweeted again on February 8, 2019, stating: 27 i love watching the men in my industry who’ve sexually abused me and 1 many others squirm as I take them out one by one while they nervously 2 await their turn [¶] hahahahahahahaha eat goat dung you epoxy brained cowards 3 Todd Decl., Ex. A. Lovecruft’s tweet on February 20, 2019 reads: 4 Nadim Kobeissi is a serial rapist and abuser who defends other rapists 5 including Jacob Appelbaum and Peter Todd and in 2012 he grabbed my face and force kissed me at a conference and i absolutely believe the multiple 6 survivors I’ve personally spoken with since then 7 Id. Later that day, another user asked Lovecruft, “Peter todd is a rapist?” Id. Lovecruft tweeted in 8 response: 9 yes, similar to Nadim, i personally have a story about Peter Todd and i’ve personally spoken with survivors with absolutely awful and horrifying 10 reports who are terrified of him and of coming forward (rightly so) [¶] i 11 however am not afraid and shitty dudes are going down 12 Id. Todd asserts that the Statements “contain and comprise false assertions of fact,” because he 13 has not sexually assaulted or raped Lovecruft or anyone else. Compl. ¶¶ 40-42. He claims that 14 Lovecruft knew the Statements were false when Lovecruft made them, or alternatively, that 15 Lovecruft acted “in reckless disregard of the falsity of [their] Statements when [Lovecruft] published 16 them.” Id. ¶ 45. He also alleges that “[n]umerous people have viewed [Lovecruft’s] Statements, 17 and numerous people have publicly commented on [the] Statements.” Id. ¶ 44. According to Todd, 18 the Statements remain publicly viewable on Lovecruft’s Twitter account. Id. ¶ 46. He also contests 19 the facts presented in the Doe declaration, and states that he believes Lovecruft and possibly Wilcox 20 “fabricated the declaration of Jane Doe.” Todd Decl. ¶ 33. He testifies that he “did not rape, assault, 21 or coerce anybody into having sex” with him. Id. 22 F. Claims 23 Todd brings a state law defamation claim against Lovecruft. Compl. ¶¶ 49-61. He alleges 24 that Lovecruft published the Statements “willfully and maliciously with the intent to harm [him],” 25 and that as a result he has suffered “shame, embarrassment, hurt feelings, anxiety, mortification, 26 embarrassment, [] loss [of] reputation among his friends, peers, and in his professional community,” 27 and has also lost professional opportunities such as invitations to speak at conferences. Id. ¶¶ 58- 1 60. He is seeking a permanent injunction requiring Lovecruft to remove the allegedly defamatory 2 Statements from their Twitter account, and an award of damages, including compensatory and 3 punitive damages, costs of suit, and pre-judgment interest. Compl. at 8. 4 II. LEGAL STANDARD FOR CALIFORNIA ANTI-SLAPP MOTIONS IN FEDERAL 5 COURT 6 Known as the “anti-SLAPP” statute,6 California Code of Civil Procedure section 425.16 7 “was enacted to allow early dismissal of meritless first amendment cases aimed at chilling 8 expression through costly, time-consuming litigation.” Jordan-Benel v. Universal City Studios, Inc., 859 F.3d 1184, 1188 (9th Cir. 2017) (quoting Metabolife Int’l, Inc. v. Wornick, 264 F.3d 832, 9 839 (9th Cir. 2001)). The statute provides that a claim against an individual “arising from any act 10 of that person in furtherance of the person’s right of petition or free speech” under the federal or 11 California constitutions “shall be subject to a special motion to strike . . . .” Cal. Civ. Proc. Code § 12 425.16(b)(1). 13 Under California law, “[t]he analysis an anti-SLAPP motion proceeds in two steps.” Iglesia 14 Ni Cristo v. Cayabyab, No. 18-cv-00561-BLF, 2019 WL 3997474, at *2 (N.D. Cal. Aug. 23, 2019) 15 (quoting Barry v. State Bar of California, 2 Cal. 5th 318, 321 (2017)). First, the court determines 16 whether the plaintiff’s claims are directed at “an act in furtherance of protected 17 expression.” Metabolife, 264 F.3d at 840 (citing Cal. Civ. Proc. Code § 425.16(b)). The moving 18 defendant bears the burden of “identifying all allegations of protected activity, and the claims for 19 relief supported by them.” Baral v. Schnitt, 1 Cal. 5th 376, 396 (2016). At the second step, the 20 burden shifts to the plaintiff to show a “reasonable probability of prevailing in its claims.” 21 Metabolife, 264 F.3d at 840. The plaintiff must demonstrate that “each challenged claim based on 22 protected activity is legally sufficient and factually substantiated.” Baral, 1 Cal. 5th at 396. 23 A district court sitting in diversity must apply the federal standard for such motions. The 24 tension in applying anti-SLAPP laws in federal court arises from the doctrine expressed in Erie 25 Railroad Co. v. Tompkins, 304 U.S. 64 (1938); namely, that federal courts sitting in diversity apply 26 state law to matters of substance, but federal law governs matters of procedure. See Hanna v. 27 1 Plumer, 380 U.S. 460, 473 (1965). California’s anti-SLAPP law contains several provisions that 2 give heightened protection to anti-SLAPP defendants, including the availability of a special motion 3 to strike, interlocutory appeals, attorneys’ fees and costs, and a stay on discovery. See Cal. Code 4 Civ. Proc. § 425.16. Whether any of these provisions are procedural and conflict with the Federal 5 Rules of Civil Procedure has been “hotly disputed.” Planned Parenthood Fed’n of Am., Inc. v. Ctr. 6 for Med. Progress, 890 F.3d 828, 833 (9th Cir. 2018). 7 The Ninth Circuit first considered the federal application of California’s anti-SLAPP law 8 in U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963 (9th Cir. 1999). In that 9 case, the district court refused to apply section 425.16, finding that the provisions permitting a 10 special motion to strike and allowing the recovery of attorneys’ fees and costs directly conflicted 11 with Federal Rules 8, 12, and 56. Id. at 972. On appeal, the Ninth Circuit determined that those 12 provisions and the Federal Rules “can exist side by side . . . each controlling its own intended sphere 13 of coverage without conflict.” Id. (quoting Walker v. Armco Steel, 446 U.S. 740, 752 (1980)). The 14 court found that although the anti-SLAPP statute and the Federal Rules “serve similar purposes, 15 namely the expeditious weeding out of meritless claims before trial,” there is not a direct collision 16 between those authorities because “there is no indication that Rules 8, 12, and 56 were intended to 17 ‘occupy the field’ with respect to pretrial procedures aimed at weeding out meritless claims.” Id. It 18 also held that the “twin aims” of Erie (“discouragement of forum-shopping and avoidance of 19 inequitable administration of the law”) weighed in favor of applying California’s anti-SLAPP statute 20 in federal court. Id. at 973 (quoting Hanna, 380 U.S. at 468). Accordingly, the court reversed the 21 district court and affirmed the availability of anti-SLAPP motions in federal court. Id. 22 The Ninth Circuit revisited the anti-SLAPP statute two years later in Metabolife. Metabolife 23 reaffirmed Newsham in finding that the provisions regarding a special motion to strike and the 24 availability of attorneys’ fees and costs are applicable in federal court. 264 F.3d at 845. However, 25 the court determined that two other provisions of the statute, subsections 425.16(f) and (g), conflict 26 with the Federal Rules and cannot be applied in federal diversity cases. Id. at 486. These rules 27 relate to the discovery stay provisions of California’s anti-SLAPP law: subsection 425.16(f) 1 any later date, at the court’s discretion), and subsection 425.16(g) automatically stays all discovery 2 until the court rules on the anti-SLAPP motion. Id. Metabolife examined these provisions in light 3 of Rule 56’s requirement that “adequate discovery will occur before summary judgment is 4 considered,” and concluded that the “discovery-limiting aspects of [subsections] 425.16(f) and (g) 5 collide with the discovery-allowing aspects of Rule 56” and therefore cannot apply in federal court. 6 Id. (quoting Rogers v. Home Shopping Network, Inc., 57 F. Supp. 2d 973, 982-83 (C.D. Cal. 1999)). 7 The anti-SLAPP statute came before the Ninth Circuit again in Makaeff v. Trump Univ., 8 LLC, 715 F.3d 254 (9th Cir. 2013). There, the court applied the burden-shifting framework of 9 section 425.16 in reviewing a district court’s denial of an anti-SLAPP motion. 715 F.3d at 261. 10 Makaeff is of particular interest in that it showcases some of the conflicting views of the applicability 11 of anti-SLAPP motions among circuit jurists. In a concurring opinion, Judge Kozinski agreed that 12 the majority “faithfully applies [the] law” as articulated in Newsham but wrote separately to opine 13 that Newsham is “wrong and should be reconsidered.” Id. at 272 (Kozinski, J., concurring). He 14 reasoned that Rules 12 and 56 already provide procedural mechanisms for disposing of claims 15 before trial, and section 425.16 impermissibly alters the federal scheme by allowing a defendant to 16 “get a case dismissed for factual insufficiency while concealing evidence that supports [the] 17 plaintiff’s case.” Id. at 274. He concluded that California’s anti-SLAPP law “has no application in 18 federal court.” Id. at 273. The Ninth Circuit declined to reconsider Makaeff en banc. Makaeff v. 19 Trump University, LLC, 736 F.3d 1180 (9th Cir. 2013). In dissent to that decision, Judge Watford 20 agreed with Judge Kozinski that the state statute conflicts with Federal Rules 12 and 56. Id. at 1188. 21 He opined that an anti-SLAPP motion to strike conflicts with Rule 12 in that it “impose[s] a 22 probability requirement at the pleading stage,” and conflicts with Rule 56 because it “requir[es] the 23 plaintiff to prove that she will probably prevail if the case proceeds to trial—a showing considerably 24 more stringent than identifying material factual disputes that a jury could reasonably resolve in the 25 plaintiff’s favor.” Id. at 1189. 26 The Ninth Circuit most recently addressed California’s anti-SLAPP statute in Planned 27 Parenthood, where it discussed a tension between the state law and federal procedure. When a 1 action” are stayed and the discovery stay “remain[s] in effect until notice of the entry of the order 2 ruling on the motion.” Cal. Code Civ. Proc. § 425.16(g). However, in federal court, “[r]equiring a 3 presentation of evidence without accompanying discovery would improperly transform the motion 4 to strike . . . into a motion for summary judgment without providing any of the procedural safeguards 5 that have been firmly established by the Federal Rules of Civil Procedure.” Planned Parenthood, 6 890 F.3d at 833-34. The court held that preserving the discovery stay aspect of section 425.16 7 “would effectively allow the state anti-SLAPP rules to usurp the federal rules” and that the court 8 cannot “properly allow such a result.” Id. at 834. Accordingly, Planned Parenthood set forth the 9 standard that district courts must now apply in evaluating anti-SLAPP motions: 10 If a defendant makes an anti-SLAPP motion to strike founded on purely legal arguments, then the analysis is made under [Rule] 8 and 12 standards; 11 if it is a factual challenge, then the motion must be treated as though it were 12 a motion for summary judgment and discovery must be permitted. Id. at 833 (quoting Z.F. v. Ripon Unified School District, 482 Fed. App’x 239, 240 (9th Cir. 2012)). 13 For purely legal challenges, there is no need for the party opposing the motion to “submit evidence 14 showing the merit of their claims.” Id. at 834. For factual challenges, “discovery must be allowed, 15 with opportunities to supplement evidence based on the factual challenges, before any decision is 16 made by the court.” Id. 17 In this case, Lovecruft’s motion contains both legal and factual challenges to the complaint. 18 At the hearing, the court informed the parties that it would decide the legal challenges under Rule 19 12 standards, as directed by Planned Parenthood, but that the factual challenges were premature as 20 no discovery had yet taken place. Both parties represented to the court that they waived the right to 21 conduct discovery and requested that the court rule on the merits of the entire anti-SLAPP motion. 22 The court ordered the parties to submit supplemental briefing on Planned Parenthood and required 23 the parties to explain their positions, citing relevant federal authority, on how to apply the Planned 24 Parenthood framework to the current motion. The central concern of the court’s inquiry was 25 whether Planned Parenthood’s direction to treat an anti-SLAPP motion with factual challenges as 26 a motion for summary judgment eliminated California’s two-prong burden-shifting approach in 27 favor of Rule 56’s “genuine dispute of material fact” standard. 1 Upon reviewing the parties’ supplemental briefs as well as pre- and post-Planned 2 Parenthood federal authority, the court finds that Planned Parenthood did not eliminate the 3 evidentiary burden applied by California’s anti-SLAPP statute. Notably, that case does not mention 4 or address whether there is a conflict between section 425.16’s “reasonable probability” standard 5 and Rule 56’s “genuine dispute of material fact” standard. 6 Several other Circuits have addressed this question directly and have found that similar state 7 anti-SLAPP statutes impermissibly alter the Rule 56 standard. For example, the D.C. Circuit 8 addressed the issue in Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328 (D.C. Cir. 2015) and determined that the District of Columbia anti-SLAPP statute’s “likelihood of success standard is 9 different from and more difficult for plaintiffs to meet than the standards imposed by Federal Rules 10 12 and 56.” 783 F.3d at 1335. It held that the state law “conflicts with the Federal Rules by setting 11 up an additional hurdle a plaintiff must jump over to get to trial,” and therefore could not be applied 12 in federal court. Id. at 1334, 1337. Similarly, in Carbone v. Cable News Network, Inc., 910 F.3d 13 1345 (11th Cir. 2018), the Eleventh Circuit held that Georgia’s anti-SLAPP statute does not apply 14 in federal court. The court determined that the statute’s motion-to-strike procedure conflicts with 15 Rule 56 because it “contemplates a substantive, evidentiary determination of the plaintiff’s 16 probability of prevailing on his claims,” while Rule 56 only requires the nonmovant to “designate 17 specific facts showing that there is a genuine issue for trial.” 910 F.3d at 1350-51 (citations and 18 quotation marks omitted). The Fifth and Tenth Circuits have also found a conflict between state 19 anti-SLAPP laws and the Federal Rules of Civil Procedure. See Klocke v. Watson, 936 F.3d 240, 20 245 (5th Cir. 2019), as revised (Aug. 29, 2019) (“Because the [Texas anti-SLAPP law’s] burden- 21 shifting framework imposes additional requirements beyond those found in Rules 12 and 56 and 22 answers the same question as those rules, the state law cannot apply in federal court.”); Los Lobos 23 Renewable Power, LLC v. Americulture, Inc, 885 F.3d 659, 673 (10th Cir.), cert. denied sub 24 nom. AmeriCulture, Inc. v. Los Lobos Renewable Power, LLC, 139 S. Ct. 591, 202 (2018) (holding 25 that the New Mexico anti-SLAPP statute “simply does not define the scope of any state substantive 26 right or remedy . . . . the statute is procedural in all its aspects”). In contrast, the First Circuit has 27 held that there is no conflict between Maine’s anti-SLAPP law and the Federal Rules because “Rules 1 12(b)(6) and 56 are addressed to different (but related) subject-matters.” Godin v. Schencks, 629 2 F.3d 79, 88 (1st Cir. 2010). 3 Considering the circuit split on this issue, Planned Parenthood’s summary admonition to 4 apply Rule 56 to factual anti-SLAPP challenges is, at best, murky. But if the Ninth Circuit wanted 5 to eliminate the “reasonable probability” standard applied in California’s anti-SLAPP law, it could 6 have done so directly. Judges Kozinski and Watford wrote lengthy opinions addressing the 7 purported conflicts between Rule 56 and section 425.16, and Planned Parenthood does not cite 8 either opinion. Nor does it give any indication that it intended to overrule the majority decision in Makaeff and other Ninth Circuit jurisprudence applying the evidentiary standard of section 425.16. 9 Indeed, a recent unpublished circuit opinion seems to suggest that the “probability of prevailing” 10 standard survives Planned Parenthood. Nat’l Abortion Fed’n v. Ctr. for Med. Progress, 2019 WL 11 6048852, at *2 (9th Cir. Nov. 15, 2019). This court cannot assume that the Ninth Circuit reversed 12 course on a central issue without a direct statement to that effect. 13 In light of these considerations and in the absence of clear controlling authority to the 14 contrary, the court interprets Planned Parenthood to mean that Rule 56 applies to anti-SLAPP 15 motions insofar as it must permit discovery before a court considers the evidentiary record. 16 However, it does not require the court to apply the Rule 56 burdens instead of the two-pronged, 17 burden-shifting framework applied by California courts.7 Reading Planned Parenthood together 18 with the state framework, the court determines that in evaluating an anti-SLAPP motion, it must 19 first apply step one of the burden-shifting standard and look at whether the plaintiff has met the 20 burden to show that the statements were made “in furtherance of protected expression.” Metabolife, 21 264 F.3d at 840. Then on step two, the court looks at whether the defendant’s challenges are legal 22 or factual. See ITN Flix, LLC v. Hinojosa, 2019 WL 3562669, at *2 (C.D. Cal. Aug. 6, 2019) 23 24 7 District courts in this circuit have continued to apply the state framework to anti-SLAPP motions following Planned Parenthood. See, e.g., ITN Flix, LLC v. Hinojosa, WL 3562669, at *2 (C.D. Cal. 25 Aug. 6, 2019); Tensor Law P.C. v. Rubin, 2019 WL 3249595, at *4 (C.D. Cal. Apr. 10, 2019); Appel v. Wolf, 2018 WL 6726797, at *2 (S.D. Cal. Dec. 20, 2018); Nat’l Abortion Fed’n v. Ctr. for Med. 26 Progress, No. 15-cv-03522-WHO, 2018 WL 5879786, at *10 (N.D. Cal. Nov. 7, 2018); Iglesia Ni Cristo v. Cayabyab, No. 18-cv-00561-BLF, 2019 WL 3997474, at *2 (N.D. Cal. Aug. 23, 2019); 27 Nano Found., Ltd. v. Silver, 2019 WL 6723428, at *2 (C.D. Cal. Aug. 20, 2019). However, no court 1 (applying the Planned Parenthood distinction at step two of the anti-SLAPP analysis). If the 2 challenges are legal, the court evaluates those challenges under a Rule 12 analysis. If they are 3 factual, then the court must permit discovery under Rule 56. Once discovery has been completed, 4 then the court applies the “reasonable probability” standard to the plaintiff’s claims. This is the 5 standard the court will apply to the current motion. 6 A final concern must be addressed in this case. Planned Parenthood unambiguously states 7 that “discovery must be allowed” before the court rules on a defendant’s factual challenges. Planned 8 Parenthood, 890 F.3d at 834. For a motion such as the current one that involves both legal and factual challenges, the court would likely have to address the issues in two stages. First, the court 9 would apply the two-step framework to the defendant’s legal challenges; if any of the plaintiff’s 10 claims did not survive that analysis, they would be dismissed as under Rule 12. However, unlike in 11 state court, which requires the claims to be stricken without leave to amend, federal procedure 12 mandates that a plaintiff who loses an anti-SLAPP motion must have the opportunity to amend the 13 complaint. Verizon Delaware, Inc. v. Covad Commc’ns Co., 377 F.3d 1081, 1091 (9th Cir. 2004) 14 (“[G]ranting a defendant’s anti-SLAPP motion to strike a plaintiff’s initial complaint without 15 granting the plaintiff leave to amend would directly collide with Fed. R. Civ. P. 15(a)’s policy 16 favoring liberal amendment.”). At the second stage, after the plaintiff filed an amended complaint 17 and the parties conducted discovery, the court would address the defendant’s factual challenges. 18 In this case, however, the parties have explicitly waived their right to conduct discovery and 19 have requested that the court rule on all the challenges—both legal and factual—in a single order. 20 The court did not identify any authority that requires it to reject the parties’ express waivers; even 21 Planned Parenthood stated that “discovery must be allowed,” not that discovery must occur. See 22 Planned Parenthood, 890 F.3d at 834 (emphasis added). Accordingly, the court determines that it 23 can rule on the factual challenges in this motion without requiring the parties to conduct discovery. 24 III. EVIDENTIARY CHALLENGES 25 Todd raises objections to some of the evidence submitted by Lovecruft, including the 26 entirety of the Doe declaration and portions of the declarations by Lovecruft, Wilcox, and attorney 27 Rosenfeld. Opp. at 8-9. 1 A. Doe Declaration 2 Todd argues that the court should disregard the Doe declaration in its entirety on the basis 3 that it contains testimony from an anonymous source. “[C]ourts of this country recognize a general 4 right to inspect and copy public records and documents.” Nixon v. Warner Commc’ns, Inc., 435 5 U.S. 589, 597 (1978). There is therefore a “strong presumption in favor of access” to public 6 documents, including court filings. Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 7 (9th Cir. 2003). A party seeking to seal a document attached to a dispositive motion must show 8 “compelling reasons” that “outweigh the general history of access and the public policies favoring disclosure, such as the ‘public interest in understanding the judicial process.’” Kamakana v. City & 9 Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Hagestad v. Tragesser, 49 F.3d 10 1430, 1434 (9th Cir. 1995) (further citations omitted)). In her declaration, Doe states that she 11 submitted the declaration anonymously because she fears harassment and retaliation if she uses her 12 real name. Doe Decl. ¶ 1. She agreed to submit her declaration, with her name and minor identifying 13 details redacted, on the condition that the redacted portions remain under seal. Id. 14 In arguing that the Doe declaration should not be considered, Todd cites Diamond 15 Pleasanton Enter., Inc. v. City of Pleasanton, No. 12-cv-00254-WHO, 2015 WL 74946 (N.D. Cal. 16 Jan. 5, 2015) (“Diamond”) for the proposition that “[a]bsent extraordinary circumstances, witnesses 17 do not testify anonymously under our systems of laws.” 2015 WL 74946, at *1. Diamond involved 18 a commercial enterprise challenging the defendant’s condition use permit requirements as 19 unconstitutional. 2015 WL 74946, at *1. In its motion for summary judgment, the city cited to the 20 deposition transcript of a former employee of the plaintiff corporation. Id. The employee later 21 sought to have her name sealed from the court record, representing that she was not a party to the 22 case and that having her name associated with the case was damaging to her professional career. Id. 23 The court denied the motion to seal on the basis that the declarant did not identify how public 24 identification in the court record would damage her professional career. Id. 25 Todd also cites Doe v. Los Angeles Unified Sch. Dist., 2017 WL 797152 (C.D. Cal. Feb. 27, 26 2017), a case in which a plaintiff submitted anonymous declarations from three of her friends, each 27 of which redacted the name and signature of the declarant. In declining to consider the declarations, 1 the court cited 28 U.S.C. § 1746, which requires unsworn declarations to be signed by the declarant 2 under the penalty of perjury. Id at *9. The court specifically noted that the plaintiff had not 3 submitted any document identifying the signators or sought an order to keep the names of witnesses 4 under seal. Id. It stated that it could “discern no basis for the admission and consideration of 5 anonymous witness declarations.” Id. The court accordingly held that “[w]ithout any record 6 whatsoever of a witness’s identity or their signature, a declarant cannot be held to their statements 7 under ‘penalty of perjury.’” Id. 8 Neither case is persuasive here. In contrast to Diamond, where the witness offered only a conclusory allegation of professional harm in the context of a permit dispute, the potential impacts 9 of publicly identifying as a rape victim are far more apparent and severe. The Ninth Circuit has 10 recognized that courts have permitted the use of pseudonyms “[w]here it is necessary . . . to protect 11 a person from harassment, injury, ridicule or personal embarrassment . . . .” United States v. Doe, 12 655 F.2d 920, 922 n. 1 (9th Cir. 1980) (allowing the appellant, who was serving a prison sentence, 13 to proceed anonymously for fear of retaliation by other inmates); see also Does I thru XXIII v. 14 Advanced Textile Corp., 214 F.3d 1058, 1070 (9th Cir. 2000) (“[T]his court and others have 15 concealed parties’ identities in order to protect them from retaliation by third parties and also to 16 protect nonparties from reprisals.”). It is well-recognized that reports of sexual assault and rape are 17 often met with intense public attention and scrutiny, which poses a serious threat to the privacy and 18 safety of the reporter. See Krista M. Anderson, Twelve Years Post Morrison: State Civil Remedies 19 and A Proposed Government Subsidy to Incentivize Claims by Rape Survivors, 36 Harv. J. L. & 20 Gender 223, 228 (2013) (“When survivors do report their rapes, they face an onslaught to their 21 privacy from their immediate community, police investigators, media outlets, prosecutors, and 22 defense attorneys.”). A press release by the federal Bureau of Justice Statistics reports that 23 approximately 65% of rapes and sexual assaults between 2006 and 2010 were not reported to the 24 police. Bureau of Justice Statistics, Nearly 3.4 Million Violent Crimes Per Year Went Unreported 25 to the Police From 2006 to 2010 (August 9, 2012), 26 https://www.bjs.gov/content/pub/press/vnrp0610pr.cfm; see also Bureau of Justice Statistics, Rape 27 and Sexual Assault Victimization Among College-Age Females, 1995-2013, at 1, 9 (2014) (finding 1 that student women ages 18-24 reported rape and sexual assault to the police in 20% of cases, 2 compared to 32% reporting by non-student women of the same age group). Reasons for not 3 reporting sexual assault or rape include self-blame, guilt, shame and embarrassment, fear of the 4 perpetrator or the perceptions of others, fear of not being believed, and lack of trust in the criminal 5 justice system. See National Institute of Justice, Reporting of Sexual Violence Incidents (October 6 25, 2010), https://nij.ojp.gov/topics/articles/reporting-sexual-violence-incidents; see also Deborah 7 Tuerkheimer, Beyond #metoo, 94 N.Y.U. L. Rev. 1146, 1155 (2019) (“At every stage of the criminal 8 process, allegations of sexual assault are mostly treated with skepticism, especially in cases involving acquaintances.”). “With regard to allegations of sexual assault or sexual harassment in 9 particular, courts in the Ninth Circuit have found that allowing victims to proceed anonymously 10 serves a strong public interest in protecting the identities of sexual assault victims so that other 11 victims will not be deterred from reporting such crimes.” Heineke v. Santa Clara Univ., No. 17-cv- 12 05285-LHK, 2017 WL 6026248, at *22 (N.D. Cal. Dec. 5, 2017) (citations and internal quotation 13 marks omitted). The privacy and safety interests of Doe in this case are substantial and weigh in 14 favor of permitting consideration of the declaration without requiring Doe to publicly testify. 15 Doe is also distinguishable. Unlike in Doe, where the plaintiff did not offer any justification 16 for submitting anonymous declarations, Doe has asserted a strong interest in not identifying publicly 17 as a rape victim. In addition, Doe has submitted a document under seal with her real name, which 18 she signed under penalty of perjury. This is not similar to Doe, where the court could not discern 19 whether the declarants were “actually signed by any witness” because the signature blocks were 20 redacted. See 2017 WL 797152, at *9. The court therefore can hold Doe to her statements under 21 penalty of perjury. 22 Nor does the court’s consideration of the Doe declaration prejudice Todd. He does not 23 represent that he does not know Doe’s identity, although he easily could have done so on the record.8 24 Todd also had the right to insist on conducting discovery prior to the court reaching Lovecruft’s 25 factual challenges and could have sought additional information about Doe and her allegations, 26 27 1 including by taking her deposition. Todd explicitly waived that right. He may dispute the facts of 2 his encounter with Doe or disagree with her characterization of the event as a rape, but there is no 3 barrier to his being able to respond to Doe’s accusations without a public identification of the 4 declarant. 5 Accordingly, the court finds that the Doe declaration is competent evidence for the purposes 6 of this motion. 7 B. Lovecruft Declaration 8 Todd objects to consideration of two exhibits attached to Lovecruft’s declaration. The first, Exhibit 2, is a series of screenshots purportedly documenting Lovecruft’s private conversation on 9 Twitter with an unidentified third party. See Lovecruft Decl. ¶¶ 13-14; id., Ex. 2. The second 10 exhibit is screenshots of the Signal message exchange between Lovecruft and Doe. See Lovecruft 11 Decl., Ex. 9. Todd objects to both exhibits on the basis that they are “facially incomplete, do not 12 refer to him by name, and do not identify the person communicating with Lovecruft.” Opp. at 9. 13 He seeks to exclude both exhibits as inadmissible under Federal Rule of Evidence 901. 14 Both exhibits are unnecessary for the court’s analysis. The only issue for which Exhibit 2 is 15 relevant is to show Lovecruft’s credibility as to their accusations that Todd engaged in sexual 16 misconduct toward them personally. However, the court cannot consider the credibility of either 17 party in deciding this motion. Overstock.com, Inc., 151 Cal. App. 4th at 699 (stating that the court 18 does not weigh credibility or evaluate the weight of the evidence in ruling on an anti-SLAPP 19 motion). Nor is the court deciding the truth of whether Todd assaulted Lovecruft, which is a 20 “question of fact for trial.” Moyer v. Amador Valley J. Union High Sch. Dist., 225 Cal. App. 3d 21 720, 724 n. 2 (1990). Because the court does not consider Exhibit 2 in the present motion, Todd’s 22 request to exclude it is denied as moot. 23 Exhibit 9 documents the text conversation between Lovecruft and Doe. This exhibit is also 24 unnecessary for the court’s analysis. Both Lovecruft and Doe describe the contents of their 25 conversation in their declarations. Both declarations are signed under penalty of perjury and are 26 admissible evidence for the purposes of this motion. Any information contained in the screenshots 27 of their exchange is at most duplicative of the facts attested to in the declarations, and the court need 1 not separately consider the contents of Exhibit 9. Accordingly, Todd’s request to exclude Exhibit 9 2 is also denied as moot. 3 C. Wilcox Declaration 4 In his declaration, Wilcox testifies that he personally witnessed another friend of his (not 5 Lovecruft or Doe) experience unwanted advances by Todd. Wilcox Decl. ¶ 4. Wilcox also confirms 6 that Lovecruft told him about Todd’s “persistent and unwanted sexual advances” on July 10, 2017. 7 Id. ¶ 5. He states that he learned later from Doe that Todd had pressured her into sex while she was 8 “in a mentally compromised state due to a medical condition.” Id. ¶ 6. Todd argues that these statements contain statements by Lovecruft, Doe, and the third individual that are hearsay and 9 inadmissible. Opp. at 9. 10 Hearsay is defined as an out-of-court statement that is offered to “prove the truth of the 11 matter asserted.” Fed. R. Evid. 802. To the extent that the third-party statements in the Wilcox 12 declaration are offered to prove the truth of the matter asserted (namely, that Todd sexually assaulted 13 or made unwanted advances on any of the three individuals), they are excluded as inadmissible 14 hearsay. The non-hearsay portions of the declaration are unnecessary for the court’s analysis. They 15 at most support Doe’s credibility as to her encounter with Todd, or Lovecruft’s credibility that they 16 spoke with Doe about Todd. The court cannot weigh credibility in ruling on an anti-SLAPP motion. 17 Overstock.com, 151 Cal. App. 4th at 699. Accordingly, the court does not consider any portion of 18 the Wilcox declaration in ruling on this motion. 19 D. Rosenfeld Declaration 20 Todd seeks to exclude paragraph 2 of the Rosenfeld declaration on the basis that it is 21 inadmissible hearsay. In that paragraph, Lovecruft’s counsel testifies that he spoke with Doe on the 22 phone on July 12, 2019 and prepared her declaration under a pseudonym using the information she 23 provided to him. Rosenfeld Decl. ¶ 2. 24 The court notes that the declaration does not appear to relay any statements by Doe herself. 25 However, to the extent that Rosenfeld’s conversation with Doe is offered to prove that Todd actually 26 assaulted Doe, the content of that conversation is excluded as inadmissible hearsay. The court may 27 consider this portion of the Rosenfeld declaration for other purposes, including that Rosenfeld spoke 1 with Doe and prepared her declaration based on the facts she relayed to him. These facts are within 2 Rosenfeld’s personal knowledge and are not hearsay. 3 IV. DISCUSSION 4 A. Protected Activity 5 “The first step in analyzing an anti-SLAPP motion is determining whether the defendant 6 successfully made ‘an initial prima facie showing that the plaintiff’s suit arises from an act in 7 furtherance of the defendant’s rights of petition or free speech.’” Piping Rock Partners, Inc. v. 8 David Lerner Assocs., Inc., 946 F. Supp. 2d 957, 967 (N.D. Cal. 2013) (quoting Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1110 (9th Cir. 2003)) (further citations omitted). A protected act 9 includes “any written or oral statement or writing made in a place open to the public or a public 10 forum in connection with an issue of public interest.” Cal. Code Civ. Proc. § 425.16(e). The 11 defendant’s burden on this step “is not a particularly demanding one.” Daniel v. Wayans, 8 Cal. 12 App. 5th 367, 387 (Ct. App. 2017). In order to meet the burden at step one of the anti-SLAPP 13 analysis, the defendant must establish that the challenged statements were made (1) in a public 14 forum and (2) in connection with an issue of public interest. 15 1. Public Forum 16 All the Statements at issue were published on Lovecruft’s public Twitter feed. “Web sites 17 accessible to the public . . . are ‘public forums’ for purposes of the anti-SLAPP statute.” Barrett v. 18 Rosenthal, 40 Cal. 4th 33, 41 (2006); see also Cross v. Facebook, Inc., 14 Cal. App. 5th 190, 199 19 (Ct. App. 2017) (finding that “[i]t cannot be disputed that Facebook’s website” is a public forum 20 within the meaning of section 425.16(b)(1)); Jackson v. Mayweather, 10 Cal. App. 5th 1240, 1252 21 (Ct. App. 2017), as modified (Apr. 19, 2017) (finding that postings on Facebook and Instagram were 22 made in a public forum). 23 Todd does not dispute that Twitter is a public forum for the purposes of the anti-SLAPP 24 statute. Accordingly, Lovecruft has met their burden on this issue. 25 2. Public Interest 26 The anti-SLAPP statute does not define “public interest,” but “its provisions ‘shall be 27 construed broadly’ to safeguard ‘the valid exercise of the constitutional rights of freedom of speech 1 and petition for the redress of grievances.’” Summit Bank v. Rogers, 206 Cal. App. 4th 669, 693 2 (2012) (quoting Cal. Code Civ. Proc. § 425.16(a)). In determining whether an issue is a matter of 3 public interest, courts may consider “whether the subject of the speech or activity was a person or 4 entity in the public eye or could affect large numbers of people beyond the direct participants; and 5 whether the activity occur[red] in the context of an ongoing controversy, dispute or discussion.” 6 FilmOn.com Inc. v. DoubleVerify Inc., 7 Cal. 5th 133, 145 (2019) (internal quotation marks and 7 citations omitted). “[A] matter of public interest should be something of concern to a substantial 8 number of people. Thus, a matter of concern to the speaker and a relatively small, specific audience is not a matter of public interest.” Weinberg v. Feisel, 110 Cal. App. 4th 1122, 1132 (2003) (internal 9 citation omitted). In addition, there should be “some degree of closeness between the challenged 10 statements and the asserted public interest.” Id. “[I]t is not enough that the statement refer to a 11 subject of widespread public interest; the statement must in some manner itself contribute to the 12 public debate.” FilmOn.com, 7 Cal. 5th at 150 (quoting Wilbanks v. Wolk, 121 Cal. App. 4th 883, 13 898 (2004)). 14 Lovecruft asserts that the Statements relate to sexual harassment and violence against 15 women, which is a matter of “pressing public concern.” Mot. at 8 (quoting Carney v. Santa Cruz 16 Women Against Rape, 221 Cal. App. 3d 1009, 1021 (1990)). Lovecruft argues that “calling out 17 prominent and powerful men who have engaged in sexual assault” is one of the core issues of the 18 public debate around sexual misconduct, and that their accusations against Todd are directly 19 connected to that issue. Id. Todd does not dispute that sexual harassment and violence against 20 women is a matter of public interest but asserts that Lovecruft’s tweets are “pure invective” and 21 contain “absolutely no exploration, analysis, or discussion” of sexual harassment and violence 22 against women. Opp. at 12. He also argues that the tweets at issue related to the parties’ private 23 dispute about Lovecruft’s Zcash business rather than the asserted public interest. Id. 24 Todd primarily relies on Grenier v. Taylor, 234 Cal. App. 4th 471 (2015). The court in that 25 case stated: “[A] defendant charged with defamation cannot, through his or her own conduct, create 26 a defense by making the claimant a public figure. Otherwise private information is not turned into 27 a matter of public interest simply by its communication to a large number of people.” 234 Cal. App. 1 4th at 482. Todd asserts that Lovecruft published the Statements as part of the parties’ private 2 dispute about Zcash and that under Grenier, Lovecruft cannot turn a “private controversy into a 3 public matter by publishing accusations on the internet.” Opp. at 12. 4 A closer examination of Grenier disproves Todd’s characterization of the public interest at 5 stake. In Grenier, the plaintiffs were a church pastor and his wife who brought a defamation case 6 against the pastor’s stepson and a parishioner. 234 Cal. App. 4th at 476-77. The defendants had 7 posted multiple comments about the pastor on an internet forum and on the stepson’s personal 8 website. Id. at 477. In these postings, the defendants accused the pastor of childhood abuse against the stepson and claimed that the pastor was stealing money from the church. Id. The posts included 9 comments stating that the pastor was “a bad guy and has gotten away with a lot of bad stuff in his 10 life including drug dealing, drug smuggling, child abuse, alleged molestation . . . stealing money 11 from the church, spiritual abuse and much other stuff,” “a Liar and self-confessed Felony Child 12 Abuser,” and “a sick child molesting evil man!” Id. at 477-78. On appeal, the plaintiffs argued 13 that these statements were not made in a connection with an issue of public interest because the 14 situation was “a private family dispute that [the defendants] have attempted to make public by their 15 own conduct.” Id. at 481. The court disagreed, stating that the pastor’s “character and fitness to 16 serve as a pastor are of interest to the membership” of the church. Id. It noted that the defendants 17 were “attempting to warn people away from attending the Church with Bob as the pastor,” and 18 information provided to aid decision-making by potentially affected parties is an issue of public 19 concern. Id. (citing Wilbanks v. Wolk, 121 Cal. App. 4th 883, 900 (2004)). It accordingly held that 20 “allegations of abuse by the members of the clergy and the protection of children concern issues of 21 public interest.” Id. 22 The analysis in Grenier is directly applicable to this case. Todd characterizes Lovecruft’s 23 Statements as “pure invective” and lacking in serious analysis of violence against women. However, 24 as Grenier indicates, accusations of abuse on their own can serve the interest of the public at large. 25 As both parties testify, Todd and Lovecruft are in overlapping professional communities. Todd 26 states that he is “highly-regarded in the cryptography and cryptocurrency sectors,” regularly speaks 27 at conferences around the world regarding his work in cryptography and has a large online 1 following. Compl. ¶¶ 1, 16-17, 19. By his own admission, Todd has influence within the 2 cryptography community and related fields. Members of those communities have an interest in 3 judging whether they should interact with Todd and allegations of sexual abuse against Todd can 4 inform those decisions. The court therefore rejects Todd’s assertion that accusations alone cannot 5 contribute to a matter of public interest. 6 Terry v. Davis Cmty. Church, 131 Cal. App. 4th 1534 (2005), is also on point. In that case, 7 the plaintiffs were church youth group leaders who sued their church and various affiliates. 131 8 Cal. App. 4th at 1539. The defendants had published a report that accused the plaintiffs of being sexually involved with a minor girl who was a member of the church. Id. The report was distributed 9 to and read by over 100 people. Id. The plaintiffs sued for defamation, and the defendants filed an 10 anti-SLAPP motion, which the trial court granted. Id. On appeal, the plaintiffs asserted that there 11 was no “public interest” in the matter because the issue was a private relationship. Id. at 1547. The 12 court disagreed: 13 14 The issue as to whether or not an adult who interacts with minors in a church youth program has engaged in an inappropriate relationship with any of the 15 minors is clearly a matter of public interest. The public interest is society’s interest in protecting minors from predators, particularly in places such as 16 church programs that are supposed to be safe. It need not be proved that a particular adult is in actuality a sexual predator in order for the matter to be 17 a legitimate subject of discussion. 18 Id. The court accordingly held that the defendants had shown the existence of a public interest in 19 the issue of the plaintiffs’ alleged misconduct. 20 In this case, Lovecruft made public statements accusing Todd of sexual misconduct toward 21 Lovecruft and at least one other individual. As in Terry, where the court found a public interest in 22 specifically identifying individuals believed to have committed misconduct, Lovecruft’s accusations 23 contribute to the discussion surrounding sexual assault because they invite discussion on identifying, 24 responding to, and preventing sexual abuse. Publicly accusing individuals of rape and sexual assault 25 is unquestionably controversial, but the controversy itself serves to demonstrate that it is a matter of 26 public interest and debate. This is not to say that such statements are not defamatory; Todd could 27 still prevail on the merits if he meets his burden to show that the statements are false and that 1 however, the public has an interest in identifying individuals who commit sexual abuse and 2 accusations of abuse are matters of public concern. 3 Todd’s argument that this debate is not significant enough to garner public interest is 4 unconvincing. In Grenier, the court of appeals stated that the membership of the church, which 5 ranged from 550 to 1,000, was “large enough to qualify as a ‘community’ for purposes of section 6 425.16.” Grenier, 234 Cal. App. 4th at 483. Terry found a significant public interest where only 7 about 100 people read the report at issue. Terry, 131 Cal. App. 4th at 1539, 1549. Here, Todd’s 8 complaint and submissions support his claim that he is well-known within his industry. Both parties maintain active Twitter accounts, and Todd’s has over 100,000 followers. The communities that 9 have an interest in hearing allegations of abuse by Todd are appreciably larger than the relatively 10 small church communities in Grenier and Terry. Accordingly, the court finds that the allegedly 11 defamatory statements in this case are of interest to the public. 12 Finally, to the extent that Todd invites the court to prejudge the truth of the Statements by 13 finding that they are “pure invective,” that inquiry is outside the purview of the court’s analysis at 14 this stage. See Piping Rock Partners, Inc. v. David Lerner Assocs., Inc., 946 F. Supp. 2d 957, 969 15 (N.D. Cal. 2013), aff’d, 609 F. App’x 497 (9th Cir. 2015) (“By asserting that the statements are not 16 in the public interest because they are false, plaintiffs urge the Court to ‘read a separate proof-of- 17 validity requirement into the operative sections of the statute,’ which this Court cannot do.” (citation 18 omitted)). 19 In sum, the court concludes that Lovecruft has met their burden to show that the Statements 20 were made in a public forum in connection with a matter of public interest. 21 B. Probability of Prevailing 22 On the second step of the anti-SLAPP analysis, the burden shifts to the plaintiff to show a 23 reasonable probability of succeeding on the merits. “Reasonable probability” in the anti-SLAPP 24 statute requires only a “minimum level of legal sufficiency and triability.” Linder v. Thrifty Oil 25 Co., 23 Cal. 4th 429, 438 n. 5 (2000). The second step of the anti-SLAPP inquiry is often called the 26 “minimal merit” prong. See Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton 27 LLP, 133 Cal. App. 4th 658, 675 (2005); Navellier v. Sletten, 29 Cal.4th 82, 93 (2002) (“[T]he 1 statute poses no obstacle to suits that possess minimal merit.”). To establish “minimal merit,” the 2 plaintiff need only “state and substantiate a legally sufficient claim.” Jarrow Formulas, Inc. v. 3 LaMarche, 31 Cal. 4th 728 (2003); see Heineke2017 WL 6026248, at *4 (stating that the plaintiff’s 4 burden is “a relatively low one”). 5 The court’s inquiry at this stage “is limited to whether the plaintiff has stated a legally 6 sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment.” 7 Baral, 1 Cal. 5th at 384-85. In determining whether the plaintiff has substantiated a legally sufficient 8 claim, the court looks to the pleadings and affidavits submitted by the parties but “do[es] not weigh 9 credibility [or] evaluate the weight of the evidence.” Manzari v. Associated Newspapers Ltd., 830 10 F.3d 881, 888 (9th Cir. 2016) (quoting Overstock, 151 Cal. App. 4th at 699.) Nor does the court 11 resolve “conflicting factual claims.” Baral, 1 Cal. 5th at 384. It instead “accepts the plaintiff’s 12 evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law.” Id. at 385. However, the plaintiff must support his claims with admissible 13 evidence. Metabolife, 264 F.3d at 840. “[A]verments on information and belief are 14 insufficient.” Church of Scientology v. Wollersheim, 42 Cal. App. 4th 628, 654 (1996), disapproved 15 of on other grounds by Equilon Enterprises v. Consumer Cause, Inc., 29 Cal. 4th 53 (2002). 16 California law provides that a plaintiff bringing a defamation claim must show four 17 elements: “that defendants published the statements; that the statements were about plaintiff; that 18 they were false; and that defendants failed to use reasonable care to determine the truth or falsity.” 19 Hecimovich v. Encinal Sch. Parent Teacher Org., 203 Cal. App. 4th 450, 470 (2012). If the plaintiff 20 is a public figure, then he must prove that the defendant acted with “actual malice.” Makaeff, 715 21 F.3d at 258. The court first considers whether Todd has made a prima facie case that the Statements 22 constitute defamation, and then turns to whether he has met his burden to show that Lovecruft made 23 the statements with the requisite state of mind. 24 1. Defamatory Meaning of the Four Statements 25 Under California law, defamation is “the intentional publication of a statement of fact which 26 is false, unprivileged, and has a natural tendency to injure or which causes special damage.” 27 Makaeff, 715 F.3d at 264 (quoting Gilbert v. Sykes, 147 Cal. App. 4th 13, 27 (2007)) (further 1 citations omitted). The court determines as a matter of law whether a statement is “reasonably 2 susceptible of a defamatory interpretation; if the statement satisfies this requirement, it is for the 3 jury to determine whether a defamatory meaning was in fact conveyed to the listener or reader.” 4 Bently Reserve LP v. Papaliolios, 218 Cal. App. 4th 418, 428 (2013). In deciding whether a 5 statement is reasonably susceptible of a defamatory meaning, a court must use “a totality of the 6 circumstances test” and “put itself in place of an average reader and determine the natural and 7 probable effect of the statement.” ZL Techs., Inc. v. Does 1-7, 13 Cal. App. 5th 603, 624 (2017) 8 (quoting Bently Reserve LP, 218 Cal. App. 4th at 427-28). “[W]e look to what is explicitly stated as well as what insinuation and implication can be reasonably drawn from the communication.” 9 Issa v. Applegate, 31 Cal. App. 5th 689, 703 (2019) (quoting Forsher v. Bugliosi, 26 Cal. 3d 792, 10 803 (1980)). 11 California law recognizes two types of defamatory statements. “A libel which is defamatory 12 of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or 13 other extrinsic fact, is said to be a libel on its face,” otherwise known as libel per se. Cal. Civ. Code 14 § 45a. A statement is libel per se if “a defamatory meaning appears from the language itself without 15 the necessity of explanation or the pleading of extrinsic facts.” Song fi Inc. v. Google, Inc., 108 F. 16 Supp. 3d 876, 888 (N.D. Cal. 2015) (quoting Palm Springs Tennis Club v. Rangel, 73 Cal. App. 4th 17 1, 15 (1999)). Defamation per quod is defamatory language that is not libelous on its face. Id. 18 Whether a statement constitutes defamation per se or defamation per quod matters for the issue of 19 damages, which is discussed further below. 20 a. February 5, 2019 Statement 21 On February 5, 2019, Lovecruft tweeted the following about Kobeissi: 22 This is not even touching upon the stories of the rape and assault survivors 23 of you and @petertodd and @ioerror and you have all been seen to behave conveniently alike and seen to dutifully protect one another [upside down 24 smiley face] 25 Todd Decl., Ex. A (“First Statement”). Lovecruft argues that the First Statement is not defamatory 26 on its face because “it is not clear whether the statement calls Todd a rapist, or an assaulter, or simply 27 references other people’s prior allegations of rape and assault against Todd.” Mot. at 17. They also 1 Todd responds that the tweet “specifically accuses Peter Todd of rape and sexual assault,” and that 2 “[n]o reasonable person would view it as stating or implying anything other than that Todd has raped 3 and sexually assaulted others.” Opp. at 14. 4 Although the First Statement is primarily directed at Kobeissi, it specifically refers to Todd 5 and Applebaum. It is reasonable to construe the statement as asserting that all three individuals 6 have committed rape or assault and that there are survivors of that conduct. This interpretation is 7 “reasonably susceptible of a defamatory meaning” against Todd because it contains a factual 8 assertion that some people have survived rape and/or sexual assault perpetrated by Todd. It is not material that the First Statement is primarily directed at Kobeissi because it is also reasonably 9 susceptible of a defamatory meaning as to Todd. Lovecruft’s argument that the First Statement is 10 ambiguous as to whether it accuses Todd of rape or of a less serious sexual assault is unavailing, 11 since both interpretations would be defamatory. See Yow v. Nat’l Enquirer, Inc., 550 F. Supp. 2d 12 1179, 1183 (E.D. Cal. 2008) (“Statements which falsely impute the commission of a crime are 13 libelous on their face.”). 14 Todd has demonstrated that the First Statement is reasonably susceptible of a defamatory 15 meaning, and therefore has established a prima facie case that the First Statement constitutes 16 defamation per se. 17 b. February 8, 2019 Statement 18 Lovecruft posted another Statement on Twitter on February 8, 2019, which reads: 19 i love watching the men in my industry who’ve sexually abused me and 20 many others squirm as I take them out one by one while they nervously 21 await their turn [¶] hahahahahahahaha eat goat dung you epoxy brained cowards. 22 Todd Decl., Ex. A (“Second Statement”). Lovecruft contends that nothing in the Second Statement 23 is defamatory against Todd and in fact “does not even mention him—and there is no indication that 24 the statement was referring to him.” Mot. at 16. Todd responds that the statement is defamatory 25 when taken in context because Lovecruft “expressly accused Todd of rape” in another Twitter post 26 made three days earlier—a reference to the First Statement discussed above. Opp at 15; Todd Decl. 27 ¶¶ 4, 28, Ex. A. Todd asserts that due to the proximity and timing of the First Statement, “[a] 1 sexually abused me’ refers to Todd.” Opp. at 15. 2 Whether the Second Statement constitutes defamation per se turns on whether the First 3 Statement is part of the same publication as the Second Statement. If it is, the court must consider 4 the context of “the publication as a whole.” Kaelin v. Globe Commc’ns Corp., 162 F.3d 1036, 1040 5 (9th Cir. 1998). If the earlier tweet is instead an extrinsic fact, then the Statement is at most 6 defamation per quod. Cal. Civ. Code § 45a. The Second Restatement of Torts explains the 7 difference between “context” and “extrinsic circumstances.” Rest. 2d Torts § 563. The context of 8 a statement “includes all parts of the communication that are ordinarily heard or read with it.” Id. § 563(d). For example, “the entire contents of a personal letter are considered as the context of any 9 part of it because a recipient of the letter ordinarily reads the entire communication at one time.” Id. 10 By contrast, extrinsic circumstances consider “all the circumstances under which [the statement] is 11 made so far as they were known to the recipient.” Id. § 563(e). To illustrate, “an apparently 12 flattering statement may be reasonably understood in a defamatory sense by reason of the 13 publisher’s recognizably ironical manner.” Id. The Ninth Circuit has adopted the distinction set 14 forth by the Second Restatement of Torts. Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) 15 (“In evaluating the context in which the statement appeared, we must take into account ‘all parts of 16 the communication that are ordinarily heard or read with it.’” (quoting Rest. 2d Torts § 563(d)). 17 Here, the First and Second Statements are separate tweets and not part of the same thread. 18 The Second Statement does not retweet or explicitly reference the First Statement. The temporal 19 proximity of the tweets would not be obvious to an average user unless they specifically looked at 20 Lovecruft’s Twitter page. Lovecruft’s followers would ordinarily read the tweets as part of their 21 own feed, along with the tweets of whatever other users they follow and may see many other tweets 22 between the two posts. Further, although sexual assault is the subject matter of both tweets, it is not 23 obvious that they are both referring to the same individuals. Looking at the tweets Lovecruft made 24 between those dates, it appears that the primary discussion surrounded Lovecruft’s allegations 25 against Kobeissi, not Todd. Even if a user were following Lovecruft’s tweets closely, they may 26 reasonably believe that Lovecruft is referring only to Kobeissi. For these reasons, the court 27 concludes that the First Statement would not ordinarily be read with the Second Statement, and 1 therefore constitutes a fact extrinsic to the later tweet and not merely context. Accordingly, the 2 Second Statement is not defamation per se. Barnes-Hind, Inc. v. Superior Court, 181 Cal. App. 3d 3 377, 384–85 (1986) (finding that a statement constitutes defamation per se only when “a defamatory 4 meaning appears from the language itself without the necessity of explanation or the pleading of 5 extrinsic facts”). 6 However, the Second Statement may constitute defamation per quod. The court determined 7 above that the First Statement could reasonably be read to assert that Todd, Applebaum, and 8 Kobeissi had each committed rape and/or sexual assault. A reader could infer that Lovecruft’s tweet three days later about “men in my industry” refers at least in part to the same group of people. In 9 addition, the Second Statement explicitly states that those men sexually assaulted Lovecruft and 10 “many others.” Read together with the First Statement, the Second Statement could imply that 11 Todd, among others, sexually assaulted Lovecruft and/or other people. Therefore, the Second 12 Statement is reasonably susceptible of a defamatory meaning. Whether that meaning was actually 13 conveyed is a matter of fact for the jury. Bently Reserve LP, 218 Cal. App. 4th at 428 (2013). 14 Therefore, Todd has made a prima facie case that the Second Statement constitutes 15 defamation per quod. 16 c. February 20, 2019 Statements 17 Lovecruft tweeted two Statements on February 20, 2019. The first reads: 18 Nadim Kobeissi is a serial rapist and abuser who defends other rapists 19 including Jacob Appelbaum and Peter Todd and in 2012 he grabbed my face 20 and force kissed me at a conference and i absolutely believe the multiple survivors i’ve personally spoken with since then. 21 Todd Decl., Ex. A (“Third Statement”). This Statement explicitly and unambiguously refers to 22 Todd as a rapist. Lovecruft does not dispute that the Statement is reasonably susceptible of a 23 defamatory meaning. If it is false, this Statement constitutes defamation per se. 24 The other February 20, 2019 Statement reads: 25 yes, similar to Nadim, i personally have a story about Peter Todd and i’ve 26 personally spoken with survivors with absolutely awful and horrifying reports who are terrified of him and of coming forward (rightly so) [¶] i 27 however am not afraid and shitty dudes are going down 1 because “a statement about vague reports and stories are simply too generalized to constitute 2 defamation.” Mot. at 16. In response, Todd again urges the court to examine the Fourth Statement 3 in context and submitted an exhibit that shows that Lovecruft was responding to another user’s 4 tweet. Opp. at 15; Todd Decl., Ex. A. Another Twitter user asked Lovecruft, “Peter Todd is a 5 rapist?”, to which Lovecruft responded “yes . . . .” Opp. at 15. Todd argues that viewing the tweets 6 together, Lovecruft’s tweet specifically accuses him of being a rapist. Id. 7 On its own, the Fourth Statement is not susceptible of a defamatory meaning. It vaguely 8 asserts that Lovecruft has a “story” about Todd without any indication as to the content of the story. There is also no reference to the content of the “absolutely awful and horrifying reports.” However, 9 reading Lovecruft’s tweet together with the question posed by the other user immediately conveys 10 that Lovecruft is accusing Todd of being a rapist. The other user asked a direct “yes or no” question 11 as to whether Todd is a rapist, to which Lovecruft unambiguously answered “yes.” As explained 12 above, whether the Fourth Statement is defamation per se depends on whether the other user’s tweet 13 is context for Lovecruft’s response. The court concludes that it is. Unlike the First and Second 14 Statements considered above, where Lovecruft’s tweets were three days apart and not ordinarily 15 read together, the Fourth Statement is a direct response to another user’s question. A user reading 16 the Fourth Statement would have to also read the other user’s tweet in order to understand 17 Lovecruft’s response. Accordingly, the two tweets would ordinarily be read together. 18 Because the third-party tweet provides context for the Fourth Statement and because reading 19 both together unambiguously conveys the accusation that Todd is a rapist, the court concludes that 20 Todd has made a prima facie case that the Fourth Statement is defamation per se. 21 2. State of Mind 22 Having determined that the four Statements reasonably convey a defamatory meaning, the 23 court turns to the question of whether Todd has made a prima facie case that Lovecruft made each 24 Statement with the requisite state of mind. A private individual need only show that the defendant 25 did not act with reasonable care “in checking on the truth or falsity of the information before 26 publishing it.” Carney, 221 Cal. App. 3d at 1016. By contrast, people who are considered public 27 figures must prove that the defendant acted with “actual malice,” Makaeff, 715 F.3d at 258, which 1 requires a showing that a statement was made “with knowledge that it was false or with reckless 2 disregard of whether it was false or not.” New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964) 3 (the “New York Times” standard). An individual may be a public figure for all purposes or only in 4 limited contexts: 5 In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all 6 contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public 7 figure for a limited range of issues. 8 Manzari, 830 F.3d at 888 (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974)). The 9 parties do not dispute that Todd is not a general purpose public figure, but Lovecruft argues that he 10 is a limited purpose public figure with respect to the Applebaum controversy specifically and the 11 public debate about sexual assault generally. The court does not reach the question of whether Todd 12 may be considered a limited purpose public figure. For the reasons explained below, that issue is 13 irrelevant to the outcome. 14 As an initial matter, the court agrees with Todd that there are two types of defamatory 15 messages at issue: Lovecruft’s statements that Todd sexually assaulted and/or raped someone other 16 than Lovecruft, and Lovecruft’s statements that Todd engaged in sexual misconduct toward 17 Lovecruft. See Opp. at 19. The court separately evaluates the issue of state of mind as to the two 18 kinds of defamatory messages. 19 a. Third Party Accusation 20 The Statements relay accusations that Todd sexually assaulted and/or raped someone other 21 than Lovecruft. Lovecruft asserts that they based these Statements on Doe’s first-hand account that 22 Todd raped Doe. Mot. at 14. Todd argues at length that Lovecruft is not credible because of “their 23 history of routinely and falsely accusing men and women of sexual assault, rape, and other crimes 24 when those men and women do not support Lovecruft’s position.” Opp. at 22. He asserts that 25 Lovecruft had motive to fabricate evidence because of his criticism of Lovecruft’s Zcash business. 26 Id. at 21. He also argues that the Doe declaration “was either completely fabricated by Lovecruft or by an accomplice of Lovecruft.” Id. at 23. He contends this fabrication is “evidenced by the fact 27 1 person, let alone under the circumstances described in Jane Doe’s declaration.” Id. 2 “[T]o meet his burden for the second step of the anti-SLAPP motion analysis, Plaintiff must 3 provide evidence tending to show the factual underpinnings of Defendant’s statement are false.” 4 Guzman v. Finch, 2019 WL 1877184, at *8 (S.D. Cal. Apr. 26, 2019). Here, Todd must make a 5 prima facie case that Lovecruft’s accusations that he raped Doe are false. He notably says very little 6 about the Doe declaration, which provides the factual underpinnings of Lovecruft’s accusations. He 7 asserts that the declaration is “false” and “fabricated,” but he does not support these conclusory 8 statements. For example, he does not testify that he does not know Doe’s real identity; that he does not know anyone with Doe’s sleep disorder; that he never met such person in the identified location 9 in May 2017; that he did not go into a hotel room with Doe; or that he did not have sex with her. 10 Instead, he merely asserts that he “did not rape, assault, or coerce anybody into having sex with me.” 11 Todd Decl. ¶ 33. Todd’s evidence, even if taken as true, does not actually contradict Doe’s account, 12 it merely does not characterize the alleged encounter as rape. Since Todd has not presented anything 13 other than unsubstantiated conjecture, he has not made a prima facie case that Doe’s account or 14 Lovecruft’s subsequent accusations are false. See Nygard, Inc. v. Uusi-Kerttula, 159 Cal. App. 4th 15 1027, 1054 (2008) (“[I]f [the defendant’s] version of events was inaccurate, plaintiffs could have 16 submitted prima facie evidence of its falsity through the declaration [of the defamatory statement’s 17 subject]. Because plaintiffs did not do so, we conclude that plaintiffs failed to carry their burden of 18 making a prima facie showing of falsity.”). Todd has submitted no evidence that the court could 19 credit to conclude that Doe’s account is false. See Taus v. Loftus, 40 Cal. 4th 683, 714 (2007) 20 (“Though the court does not weigh the credibility or comparative probative strength of competing 21 evidence, it should grant the motion [to strike] if, as a matter of law, the defendant’s evidence 22 supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim.”). 23 Even if Todd provided admissible evidence tending to show that Doe’s account is false, 24 which he did not, he also has not met his prima facie burden to establish that Lovecruft negligently 25 relied on Doe’s account, let alone that Lovecruft knew Doe’s statements were false or acted with 26 reckless disregard as to whether they were false. He has not submitted any evidence, for example, 27 1 that Doe is known to be an unreliable source.9 Cf. Grewal v. Jammu, 191 Cal. App. 4th 977, 991 2 (2011) (finding that the plaintiff met his burden to show lack of reasonable care where the defendants 3 relied on a source with a criminal history and reputation for dishonesty). Todd’s complete lack of 4 evidence on this point precludes a finding that he has met his burden with respect to Lovecruft’s 5 state of mind. 6 Todd’s arguments about Lovecruft’s credibility and motivations are also unconvincing. As 7 Todd himself points out, the court cannot consider Lovecruft’s credibility on an anti-SLAPP motion. 8 See Opp. at 10; see also Kashian v. Harriman, 98 Cal. App. 4th 892, 906 (2002) (“[T]he court does not weigh the evidence or make credibility determinations.”). The facts that Todd submitted 9 regarding Lovecruft’s alleged history of false accusations are therefore irrelevant. In addition, Todd 10 raises the Zcash argument to show that Lovecruft had a motive to fabricate the Doe declaration, but 11 as stated above, Todd provides zero evidence that the declaration was actually fabricated. Todd 12 could easily refute any number of facts within the Doe declaration because those facts would be 13 within his personal knowledge. He has not done so. Accordingly, even if Lovecruft had a 14 motivation to lie, motivation alone cannot establish negligence. See Carney, 221 Cal. App. at 1017 15 (“That a libel defendant acts with hatred or ill will does not automatically establish that the defendant 16 fails to exercise reasonable care in determining whether a communication is untrue.”). 17 In sum, Todd has not made a prima facie showing that Lovecruft failed to use reasonable 18 care in accusing Todd of raping or sexually assaulting someone other than Lovecruft. As such, he 19 cannot establish the more demanding standard that Lovecruft acted with malice. It is therefore 20 unnecessary to reach the issue of whether he is a limited public figure who must demonstrate malice. 21 Since Todd has not met his prima facie burden on this issue, Defendants’ motion to strike is granted 22 as to Lovecruft’s accusations regarding Todd’s sexual misconduct against another person. 23 b. Personal Accusations 24 Two of the Statements refer to Lovecruft’s allegations about Todd’s sexual misconduct 25 toward them personally: the Second Statement in which Lovecruft refers to “men in my industry” 26 27 9 Note that the court does not make any findings with regard to Doe’s credibility but rather illustrates 1 and the Fourth Statement where Lovecruft states that “[I] personally have a story about Peter Todd.” 2 Lovecruft claims that these Statements are true, citing to Lovecruft’s own encounter with Todd in 3 August or September 2015. Todd testifies that Lovecruft’s version of that incident is false. 4 Heineke is instructive. In that case, two university students accused a professor of the 5 university of sexually harassing them. 2017 WL 6026248, at *1. The university opened an 6 investigation and issued a report finding that the professor had violated the school’s sexual 7 misconduct policy. Id. The professor brought a defamation case against the university and one of 8 the students. The court analyzed the question of malice as to the defendant’s claim of privilege under California Civil Code § 47(c), which also applies the New York Times standard of malice. See 9 id. at *11. The plaintiff had testified in his declaration that the defendant student falsely accused 10 him. Id. at *10. The court found that defendant’s unequivocal denials of the allegations was enough 11 to meet his burden to show malice at the anti-SLAPP stage. Id. at *10, *14. 12 Here, Lovecruft testifies that Todd engaged in sexual misconduct toward them. Todd denies 13 Lovecruft’s accusation. The only evidence supporting either parties’ claims are their declarations 14 attesting to conflicting versions of their encounter. In conducting the anti-SLAPP analysis, “[t]he 15 court does not weigh evidence or resolve conflicting factual claims.” Baral, 1 Cal. 5th at 384. It 16 considers only whether the plaintiff has stated “a legally sufficient claim and made a prima facie 17 factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as 18 true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a 19 matter of law.” Id. at 384-85. As Heineke shows, the defendant’s testimony that the statements are 20 true is not enough to defeat the plaintiff’s claim at this stage. Under the anti-SLAPP analysis, the 21 court must accept Todd’s evidence as true; Todd describes his Fall 2015 encounter with Lovecruft 22 in some detail and unequivocally avers that he did not engage in sexual misconduct toward 23 Lovecruft.10 At this stage, Lovecruft’s testimony to the contrary does not defeat Todd’s evidentiary 24 submissions. This is because logically, if Lovecruft is lying, Lovecruft would have to know that 25 26 10 Unlike Todd’s response to the Doe allegations, which consists of conclusory and unsubstantiated 27 statements, Todd’s testimony as to Lovecruft’s personal allegations provides specific facts that 1 their version of events is false because they personally experienced the encounter. That in turn 2 would mean that the Statements were made with malice. New York Times Co, 376 U.S. at 280 3 (stating that malice is established where the defendant made a statement “with knowledge that it 4 was false or with reckless disregard of whether it was false or not”). Since Todd has made a prima 5 facie case that Lovecruft acted with malice, it is irrelevant whether he is a private figure who need 6 only show lack of reasonable care. Khawar v. Globe Int’l, Inc., 19 Cal. 4th 254, 279 (1998), as 7 modified (Dec. 22, 1998) (“[E]vidence that is sufficient to support a finding of actual malice is 8 usually, and perhaps invariably, sufficient also to support a finding of negligence.”). Accordingly, Todd has made a prima facie case that Lovecruft’s personal accusations were 9 made with the requisite state of mind. 10 C. Special Damages 11 Todd met his anti-SLAPP burden with respect to Lovecruft’s personal accusations of sexual 12 misconduct. As the court found above, Todd made a prima facie case that the Fourth Statement 13 constitutes defamation per se as to Lovecruft’s personal accusation against him. However, the court 14 found that the Second Statement at most constitutes defamation per quod.11 In addition to the other 15 elements of a defamation claim, a claim for defamation per quod requires a plaintiff to plead special 16 damages. These include “all damages that plaintiff alleges and proves that he or she has suffered in 17 respect to his or her property, business, trade, profession, or occupation, including the amounts of 18 money the plaintiff alleges and proves he or she has expended as a result of the alleged libel, and no 19 other.” Cal. Civ. Code § 48a. “[S]pecial damages are defined narrowly to encompass only economic 20 loss.” Gomes v. Fried, 136 Cal. App. 3d 924, 939 (Ct. App. 1982). In California, “special damages 21 must be pled and proved precisely.” Id.; cf. Fed. R. Civ. P. 9(g) (“If an item of special damage is 22 claimed, it must be specifically stated.”) “A general allegation of the loss of a prospective 23 employment, sale, or profit will not suffice.” Pridonoff v. Balokovich, 36 Cal. 2d 788, 792, 228 24 P.2d 6, 8 (1951). 25 Lovecruft contends that Todd has not pleaded or proved special damages for defamation per 26 27 11 Again, the court decides here whether the Statements are reasonably susceptible of a defamatory 1 quod with the requisite particularity. Mot. at 18. Todd does not respond to this argument. The only 2 apparent reference in the complaint to special damages is paragraph 60, which states “on information 3 and believe Todd has lost professional opportunities, including conference speakerships, because of 4 Defendant’s Statements.” Compl. ¶ 60. This statement is perfunctory and vague and does not meet 5 the standard for pleading and proving special damages “precisely.” The court in Martin v. Wells 6 Fargo Bank, No. 17-cv-03425-RGK, 2018 WL 6333688 (C.D. Cal. Jan. 18, 2018) dismissed a claim 7 for defamation per quod where the plaintiff alleged damages in the form of “[a] lowered credit score, 8 . . . raised interest rates, loss of business opportunity, inability to get a home loan, inability to get a car, inability to have credit cards, [and] inability to raise his limits on other credit cards he 9 possesses.” 2018 WL 6333688, at *2. Martin stated that the plaintiff failed to allege special 10 damages with the requisite particularity because “[h]e provides no estimation of the pecuniary loss 11 suffered, and the opportunities allegedly lost are impermissibly vague.” Id.; see also Isuzu Motors 12 Ltd. v. Consumers Union of U.S., Inc., 12 F. Supp. 2d 1035, 1047 (C.D. Cal. 1998) (finding as 13 insufficient allegations that the plaintiff “has suffered and continues to suffer special damages from 14 the loss of revenue from wholesale and retail sales”). Todd’s vague reference to “lost professional 15 opportunities, including conference speakerships” is not sufficient to meet the heightened pleading 16 standard for special damages. Nor does Todd submit any evidence of special damages with his 17 opposition or make any argument on that issue. Accordingly, Todd has not established a prima facie 18 case that he is entitled to special damages for Lovecruft’s Second Statement. However, since 19 Lovecruft’s personal accusation in their Fourth Statement is defamation per se, Todd need not show 20 special damages as to that Statement. Clark v. Hidden Valley Lake Ass’n, No. 16-cv-02009-SI, 2018 21 WL 3069285, at *6 (N.D. Cal. Apr. 18, 2018) (“Under California law, defamation per se does not 22 require proof of actual damages but instead presumes that the plaintiff has suffered such damages.”). 23 In sum, the motion to strike is granted with respect to all four Statements to the extent that 24 they implicate sexual misconduct by Todd upon anyone other than Lovecruft. By contrast, Todd 25 has met his prima facie burden with respect to the Second and Fourth Statements to the extent they 26 accuse Todd of sexual misconduct toward Lovecruft. However, Todd has not made a prima facie 27 case that he is entitled to special damages with respect to the potential defamation per quod in the 1 Second Statement, so the motion to strike is granted as to the Second Statement. Since Todd is not 2 required to show special damages for the Fourth Statement, his defamation case may move forward 3 insofar as it challenges the portion of the Fourth Statement that accuses Todd of sexual misconduct 4 against Lovecruft. 5 V. LEAVE TO AMEND 6 As set forth above, Lovecruft’s motion to strike is granted except as to the Fourth Statement, 7 and only to the extent it may be read as accusing Todd of sexual misconduct against Lovecruft. 8 Although Todd has not requested leave to amend the complaint, the court considers whether it is appropriate to grant Todd such relief. After thorough consideration and review of the relevant 9 authorities, the court holds that it is not. 10 Under Federal Rule of Civil Procedure 15(a), leave to amend should be granted as a matter 11 of course, at least until the defendant files a responsive pleading. Fed. R. Civ. P. 15(a)(1). After 12 that point, Rule 15(a) provides generally that leave to amend the pleadings before trial should be 13 given “freely . . . when justice so requires.” Fed. R. Civ. P. 15(a)(2). “This policy is to be applied 14 with extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 15 2003) (quotation omitted). In the absence of an “apparent” reason, such as undue delay, bad faith 16 or dilatory motive, prejudice to the opposing party, futility of the amendments, or repeated failure 17 to cure deficiencies in the complaint by prior amendment, it is an abuse of discretion for a district 18 court to refuse to grant leave to amend a complaint. Foman v. Davis, 371 U.S. 178, 182 (1962); 19 Lockheed Martin Corp. v. Network Sols., Inc., 194 F.3d 980, 986 (9th Cir. 1999). These factors do 20 not “merit equal weight,” and “it is the consideration of prejudice to the opposing party that carries 21 the greatest weight.” Eminence Capital, 316 F.3d at 1052. 22 After Planned Parenthood, courts have generally granted leave to amend after ruling on an 23 anti-SLAPP motion based on legal challenges. See, e.g., Tensor Law P.C, 2019 WL 3249595, at 24 *13 (granting leave to amend on a “purely legal” anti-SLAPP motion); UCP Int’l Co. Ltd. v. Balsam 25 Brands Inc., No. 18-cv-07579-WHO, 2019 WL 1995768, at *3 (N.D. Cal. May 6, 2019) (same); 26 Quidel Corp. v. Siemens Med. Sols. USA, Inc., 2019 WL 4747671, at *10 (S.D. Cal. Sept. 27, 2019) 27 (same). No post-Planned Parenthood case has considered whether a plaintiff should be granted 1 leave to amend after losing an anti-SLAPP motion based on factual challenges, which “must be 2 treated as though it were a motion for summary judgment.” See Planned Parenthood, 890 F.3d at 3 833. While amendments under Rule 15(a)(2) “may be made at any stage of the litigation,” a court 4 “ordinarily will be reluctant to allow leave to amend to a party against whom summary judgment 5 has been entered . . . .” Nguyen v. United States, 792 F.2d 1500, 1503 (9th Cir. 1986) (quotations 6 omitted). Nguyen explains why amendment following summary judgment does not typically favor 7 granting leave to amend: 8 Much of the value of summary judgment procedure in the cases for which it is appropriate . . . would be dissipated if a party were free to rely on one 9 theory in an attempt to defeat a motion for summary judgment and then, should that theory prove unsound, come back long thereafter and fight on 10 the basis of some other theory. 11 Id. (quoting Freeman v. Continental Gin Co., 381 F.2d 459, 469-70 (5th Cir. 1967)). As discussed 12 above, the current motion is not identical to a Rule 56 motion because it requires the plaintiff to 13 show a “reasonable probability” of success on the merits, not just a triable issue of material fact. 14 But the considerations examined in Nguyen apply here. Anti-SLAPP motions based on factual 15 challenges are a hybrid of a Rule 56 motion and a special motion to strike under section 425.16. 16 Under Nguyen, leave to amend is not favored after a Rule 56 motion, and under established 17 California law, is not permitted after an anti-SLAPP motion. See Martin v. Inland Empire Utilities 18 Agency, 198 Cal. App. 4th 611, 629 (2011) (“Section 425.16 provides no mechanism for granting 19 anti-SLAPP motions with leave to amend.”). It would be a strange result to apply a procedure to a 20 hybrid motion that generally does not apply to either predicate motion. 21 In addition, Foman explains that the purpose of the liberal approach to amendment in federal 22 court is because a plaintiff “ought to be afforded an opportunity to test his claim on the merits.” 23 Foman, 371 at 182; see also Eldridge v. Block, 832 F.2d 1132, 1135 (9th Cir. 1987) (“In exercising 24 its discretion with regard to the amendment of pleadings, ‘a court must be guided by the underlying 25 purpose of Rule 15—to facilitate decision on the merits rather than on the pleadings or 26 technicalities.’”) (quoting United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981)). In this case, the court, at the request of the parties, went beyond review of the pleadings and has carefully 27 1 waived the right to seek further discovery and Todd has not made any request for leave to amend if 2 the court were to grant Lovecruft’s motion. The court’s decision is not based “on the pleadings or 3 technicalities” but rather on a thorough review of the current evidentiary record, the parties’ 4 arguments, and the parties’ explicit waiver of discovery. Accordingly, the purpose of Rule 15(a)(2) 5 is not furthered by granting leave to amend at this stage. 6 Verizon does not mandate a different result. See Verizon, 377 F.3d at 1091 (“[G]ranting a 7 defendant’s anti-SLAPP motion to strike a plaintiff’s initial complaint without granting the plaintiff 8 leave to amend would directly collide with Fed. R. Civ. P. 15(a)’s policy favoring liberal amendment.”). Verizon was decided before Planned Parenthood and did not consider the dual 9 framework laid out by that opinion. Under Planned Parenthood, if an anti-SLAPP motion is based 10 on “purely legal arguments, then the analysis is made under [Rule] 8 and 12 standards,” in which 11 case the liberal amendment standards of Rule 15(a)(2) apply. See Planned Parenthood, 890 F.3d at 12 833. But if the motion raises a factual challenge, “then the motion must be treated as though it were 13 a motion for summary judgment,” id., the value of which is undermined by permitting free 14 amendment of the pleadings. See Nguyen, 792 F.2d at 1503. 15 Accordingly, the identified portions of Todd’s complaint are stricken without leave to 16 amend. 17 VI. CONCLUSION 18 For the foregoing reasons, Lovecruft’s motion to strike is granted as to all four Statements 19 to the extent they implicate Lovecruft’s accusations that Todd engaged in sexual misconduct against 20 someone other than Lovecruft, and as to the Second Statement to the extent it involves Lovecruft’s 21 personal accusation against Todd. The motion is denied as to Lovecruft’s personal accusation 22 against Todd in the Fourth Statement. 23 24 IT IS SO ORDERED. 25 Dated: January 6, 2020 26 ______________________________________ 27 Donna M. Ryu