Tull v. Higgins ( 2021 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 JASHA RUBEN TULL, Case No. 21-cv-01566-DMR 9 Plaintiff, ORDER ON MOTIONS TO DISMISS AND MOTIONS TO STRIKE 10 v. Re: Dkt. Nos. 24, 25 11 MICHAELA HIGGINS, 12 Defendant. 13 LEKHA TULL, et al., Case No. 21-cv-01574-DMR 14 Plaintiff, Re: Dkt. Nos. 24, 25 15 v. 16 MICHAELA HIGGINS, 17 Defendant. 18 Plaintiffs in these related cases are Jasha Tull and his parents, Herman Tull and Lekha 19 Tull. They allege claims for defamation, civil harassment, and civil stalking against Defendant 20 Michaela Higgins aka Caeli La and ten Doe Defendants. Higgins now moves to dismiss and to 21 strike portions of the complaints. [Docket Nos. 24, 25 in Case No. 21-cv-01566; Docket Nos. 24, 22 25 in Case No. 21-cv-01574.] These motions are suitable for determination without oral 23 argument. Civil L.R. 7-1(b). For the following reasons, the motions to dismiss are granted in part 24 and denied in part. The motion to strike portions of Jasha Tull’s complaint is granted in part and 25 denied in part, and the motion to strike portions of Herman Tull and Lekha Tull’s complaint is 26 granted. 27 I. BACKGROUND 1 last name, the court refers to Plaintiffs using their first names for clarity. To avoid repetition, the 2 court first sets forth the allegations in Jasha’s complaint and then turns to the additional allegations 3 in Herman and Lekha’s complaint specific to their claims. 4 The same set of ten exhibits is attached to both complaints. The exhibits contain 5 declarations by Plaintiffs and a relative (Exs. A-D) about the allegations in the complaint, as well 6 as collections of emails, text messages and screenshots of text messages by and between the 7 parties (Exs. E-G). The exhibits also contain screenshots of various social media postings, 8 including the postings containing the statements at issue in the defamation claims (Exs. H, I, J). 9 A. Allegations in Jasha’s Complaint 10 Jasha makes the following allegations in his complaint, all of which are taken as true solely 11 for purposes of this motion.1 Jasha is an electronic musician and producer who performs under the 12 stage name “Space Jesus.” Compl. ¶ 1.2 He alleges that he is “[a] leading performer in the 13 electronic music subgenre known as ‘Bass music’” and that his music “has accumulated tens of 14 millions of plays on the music streaming platform Spotify . . .” Id. at ¶ 12. He “regularly if not 15 exclusively” lives with his parents Herman and Lekha in Princeton, New Jersey. Id. at ¶ 12. 16 Jasha began a romantic relationship with Higgins in June 2016. In July 2016, Jasha invited 17 Higgins to stay with him and his family at their homes in Princeton and Harvey Cedars, New 18 Jersey. Id. at ¶ 13. The relationship then “concluded in the late summer and early fall of 2016,” 19 and Jasha alleges that Higgins “became extremely emotionally distraught, volatile, and verbally 20 abusive” during this time. Id. at ¶ 14. During the week of September 4, 2016, Higgins appeared 21 without warning at Plaintiffs’ vacation home in Harvey Cedars and “screamed that she and [Jasha] 22 were meant to be together, and that if he did not agree to renew their relationship, that she would 23 seek to destroy him personally and professionally.” Id. at ¶ 15 (emphasis removed). After Jasha 24 “diffuse[d] the situation,” Plaintiffs invited her into their home and assisted her with returning to 25 26 1 When reviewing a motion to dismiss for failure to state a claim, the court must “accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) 27 (per curiam) (citation omitted). 1 Portland, Oregon. Id. 2 Jasha alleges that since the relationship ended, Higgins “has undertaken a campaign of 3 harassing, defaming, bullying, threatening, cyber-stalking and intimidating [Jasha],” his parents, 4 and their friends. Id. at ¶¶ 17, 18. Starting in early 2017, Higgins “began rapidly escalating her 5 menacing tone while communicating with [Jasha].” Jasha alleges that Higgins’s “violent threats 6 and statements” put him and his family “in fear and apprehension that [Higgins] and/or a third- 7 party directed or solicited by her were capable of causing him and his family serious physical 8 harm.” The statements included “I hate you now,” “[y]ou are my enemy now,” and “[t]hat makes 9 me want to fucking murder you.” Id. at ¶ 20 (emphasis removed). 10 Higgins has also “acknowledged making . . . various threatening statements against 11 [Jasha],” including the statement, “I guess I need some reassurance that this is something you 12 would have wanted to do even without the threat[.]” Id. at ¶ 22 (emphasis removed). Higgins also 13 stated, “[k]arma’s a bitch . . . wrongly accuse someone of sexual abuse and never apologize for it, 14 and you may end up getting wrongly accused yourself.” Id. at ¶ 23 (emphasis removed). 15 In November 2018, Jasha agreed to meet Higgins in person to “deescalate the situation.” 16 After their meeting in Echo Park, California, Higgins told Jasha “she ‘totally underst[ood] not 17 wanting to talk moving forward’ and that ‘[she] underst[ood] why [he] did the things [he] did and 18 [she forgave] him completely.’” Id. at ¶ 21 (alterations in original). Jasha “believed this would be 19 the conclusion of either any animosity or communications between him and [Higgins].” Id. 20 However, in December 2018, Jasha spoke with Higgins on the phone “regarding her ongoing 21 concerns and animosity,” which he believed had been resolved. Higgins “referred generally to 22 ‘accountability,’” and instead of identifying “what specific instances of alleged harm had been 23 unaddressed and how [Jasha] could resolve them,” Higgins “became audibly upset, crying, and 24 yelling.” After telling Jasha she loved him, Higgins ended the call by calling Jasha a “piece of 25 shit.” Id. at ¶¶ 25, 26. 26 In 2019, Higgins started contacting C3 Management, which represented Jasha in 27 connection with his music career, and copied Herman on her emails. In a January 22, 2019 email, 1 accusations that [Jasha] had knowingly engaged in forms of sexual misconduct . . . if his 2 management did not speak to her about the ‘accountability’ [Jasha] had supposedly not yet taken.” 3 Id. at ¶¶ 27, 28. On June 25, 2019, Higgins emailed Herman and accused Jasha of addiction to 4 several illegal and legal drugs. She also “falsely accused Jasha of having a ‘psychotic break’ in 5 which he attacked a woman” at a music festival and implored his parents to “get him help.” Id. at 6 ¶ 34. 7 In the summer of 2020, a user created an Instagram account with the username 8 @evidenceagainstspacejesus. The account “formerly stated that it was controlled by the 9 Instagram account ‘@caelila’, then later by ‘@caelislaysdemons’ which, upon information and 10 belief,” is Higgins’s personal Instagram account. Jasha further alleges on information and belief 11 that the @evidenceagainstspacejesus account is controlled by Higgins and Doe Defendants. Id. at 12 ¶¶ 36, 37, 56.3 Higgins’s personal Twitter account, @caelila, has admitted to controlling the 13 @evidenceagainstspacejesus Instagram account. Id. at ¶ 38. 14 Jasha alleges that the @evidenceagainstspacejesus and @caelila accounts post images and 15 comments falsely accusing Jasha of committing sex crimes, being a psychopath, a rapist, a sexual 16 predator, and a pedophile, and having a personality disorder. Id. at ¶¶ 40, 48-52. He further 17 alleges that “[s]eemingly all of these false accusations are anonymous, second-hand, or both.” Id. 18 at ¶ 40. The false accusations and statements at issue are: 19 • Higgins “was not given the opportunity to consent to unsafe sex [with Jasha] the first 20 time”; that while Higgins was having sex with Jasha on another occasion, his manager 21 and friends walked in and she “immediately tried to push [Jasha] off” but that he 22 “refused to get off, kept pinning me down, and kept going,” and told the witnesses 23 “what if I told you guys I was inside of her right now?” (Compl. ¶¶ 41, 42; Ex. H at 24 ECF pp. 5-6, 8); 25 • “Jasha has now fully admitted to one of the main allegations I initially contacted them 26 about (drinking, doing drugs and having sex with a 17 yr old- not in Oklahoma, as he 27 1 claimed, but actually in Knoxville, where the age of consent is 18)” (Compl. ¶ 43; Ex. 2 H at ECF p. 8); 3 • “Jasha raped me” (Compl. ¶ 44; Ex. H at ECF p. 18); 4 • “‘@evidenceagainstspacejesus’ stated that [Jasha] had consumed alcohol and other 5 illicit substances with, then statutorily raped a 17-year-old girl” (Compl. ¶ 45; Ex. H at 6 ECF p. 11); 7 • “You’re an actual, factual psychopath @spacejesus” (Compl. ¶ 48; Ex. H at ECF p. 8 32); 9 • “Whatever personality disorder Trump has (is it psychosis? megalomania? just straight 10 up soul-less?), jasha has it too. They operate the exact same way” (Compl. ¶ 49; Ex. H 11 at ECF p. 28); 12 • Twitter account “@caelila retweeted a tweet from ‘@Dmoney0101’ stating ‘So 13 disheartening to see @bassnectar @spacejesus and @NahkoBear exposed as sexual 14 predators all in one week . . .” (Compl. ¶ 50; Ex. H at ECF p. 27); 15 • In response to the tweet, “I think she’s in the wrong just as much as Jasha at this point. 16 Even if he did manipulate/gaslight/treat her like shit, it isn’t an excuse to drag others 17 into it and harass/threaten them,” Twitter account “‘@caelila’ tweeted ‘You think I’m 18 just as bad as a serial predator and rapist at this point?” (Compl. ¶ 51; Ex. H at ECF p. 19 34); 20 • Twitter account “‘@caelila’ retweeted a tweet from ‘@deadsoonshawty’ stating ‘burnt 21 all our pedophile merch last night :) FUCK YOU @spacejesus’” (Compl. ¶ 52; Ex. H 22 at ECF p. 26); 23 • Twitter account “‘@caelila’ stated that ‘@yhetimusic was not there the night Jasha 24 raped me, as he claims” (Compl. ¶ 53; Ex. H at ECF p. 18); 25 • Twitter account “‘@caelila’ retweeted a tweet from “@shambhalaaa888’ stating that 26 [Jasha] had raped [Higgins]” (Compl. ¶ 54; Ex. H at ECF p. 17); and 27 • Twitter account “‘@caelila’ stated that [Jasha] is a ‘serial rapist and predator” and that 1 girls” (Compl. ¶ 55; Ex. H at ECF p. 4). 2 • Instagram account @xxeyeseaxx, which Jasha alleges is under Higgins’s control, 3 posted on Lekha’s personal Instagram account a comment referring to Jasha as Lekha’s 4 “r*pist (sic) p*do (sic) son.” (Compl. ¶ 47; Ex. H at ECF p. 15.) 5 Jasha denies each of these allegations and alleges that they are false and/or lies. Compl. ¶¶ 41-55. 6 Jasha alleges that @evidenceagainstspacejesus has had more than 6,100 followers at one 7 time, and currently has more than 5,800 followers. He alleges that the total exposure of posts and 8 comments on the account could reach 870,000 accounts, “constituting a vast mechanism for the 9 distribution of [Higgins’s] false and baseless accusations and harassing statements” about Jasha. 10 Id. at ¶ 61. 11 Jasha further alleges that in November 2020, Higgins publicly posted a photograph of 12 herself carrying a firearm and identifying herself as a member of the Socialist Rifle Association 13 (“SRA”), a mutual aid organization. Jasha alleges that “the relation of mutual aid and firearms has 14 necessarily led to concerns” by Jasha and his family “that such supposed ‘assistance’ could come 15 in the form of individuals acting violently against . . . them.” Id. at ¶ 57; Ex. H. The following 16 month, Higgins posted an image of herself that is geotagged in Long Island, which is 50 miles 17 from the Tull family home. Id. 18 B. Allegations in Herman and Lekha’s Complaint 19 Herman and Lekha make the following additional allegations in their complaint: Herman is 20 a former professor who lives in Princeton. He is married to Lekha and is Jasha’s father. Lekha is 21 a Doctor of Dental Surgery and founder and principal of DenTull, a dental practice in Princeton. 22 She is Jasha’s mother. Compl. ¶¶ 1, 2.4 23 In April 2017, after Jasha and Higgins’s romantic relationship ended, Higgins sent Herman 24 an email accusing him of “making a demeaning statement” to Jasha “about her manner of speech.” 25 She accused him of “a lack of sensitivity and admonish[ed] him for the alleged statement he never 26 made.” Id. at ¶ 23. Higgins sent Herman a number of subsequent emails. Id. at ¶¶ 24-26. In one, 27 1 Higgins “berated” Herman for “providing the body of their email communications to C3 2 Management.” Id. at ¶ 27. 3 Throughout 2019, Herman received several direct messages at his personal Instagram 4 account. The messages were from the @evidenceagainstspacejesus, @caelila, and 5 @caelislaysdragons accounts and alleged that Jasha was a “serial rapist” and had substance abuse 6 issues and should be compelled to receive treatment. Id. at ¶ 29. Herman “reacted to [the 7 messages] with disbelief and distress.” Id. Herman alleges that Higgins’s statements “have 8 caused him significant emotional distress and created ongoing worry and apprehension that 9 perceived wrongs will be addressed extralegally, that is, through continued harassment, 10 cyberbullying and stalking as well as through the commission of violence against him.” Id. at ¶ 11 30. 12 As to Lekha, she alleges that after the end of Jasha and Higgins’s relationship, she “was 13 inundated with text messages and other communications from [Higgins]” using a pseudonym. In 14 these communications with Lekha, Higgins accused Jasha of violating and raping her, but also 15 suggested that Higgins sought to re-establish a relationship with Jasha. Lekha “communicated 16 with two of the three witnesses to Jasha and [Higgins’s] second sexual encounter, who denied that 17 Jasha . . . had done anything nonconsensual such as continue intercourse without consent,” and 18 denied another of Higgins’s accusations against Jasha. Id. at ¶ 31. After communicating with the 19 witnesses, Lekha then contacted Higgins “to determine why [Higgins] would seek to reestablish a 20 romantic relationship with an individual she also asserted had wronged her in the alleged matter.” 21 Id. at ¶ 32. After this contact between Higgins and Lehka, Higgins continued to send text 22 messages to Lekha alleging that Jasha had substance abuse problems and “ongoing and 23 unaddressed mental health issues,” and that he required treatment for these conditions. Id. at ¶ 33. 24 Higgins then began making “false and threatening statements” about Lekha and her family 25 on social media accounts. These included statements that Herman and Lekha “had enabled the 26 alleged behavior of Jasha . . . as being an alleged sexual predator.” Id. at ¶ 34. Higgins also began 27 falsely stating that Lekha and her dental practice “had improperly charged patients for tests for 1 statements, and instead set forth the following comments posted by @evidenceagainstspacejesus 2 tagging Lekha’s Instagram account, @lekhatull: 3 @lekhatull should I post the stories from Hannah, Sam, Austin, Jay, and even Jasha about how badly you abuse Joyce? I have many texts 4 and emails describing how you have treated her like dirt from day 1 simply because she didn’t come from a wealthy family; and ever since 5 she and Janak got engaged, you’ve apparently been telling anyone who will listen that Joyce is only after your family’s money. Everyone 6 who knows Joyce knows she is an angel who most parents would be thrilled to have marrying their son. Everyone can see how real their 7 love is. But you don’t care. because you don’t care about love. You only care about power, status, hierarchy, and most of all, money. 8 That’s why you charge people for covid tests at your office, WHEN COVID TESTS ARE FREE. The first thing jasha ever said to me 9 about you was “she hates Joyce because Joyce came from a poor family.” I thought he was exaggerating, but you proved it to be true 10 time and time again, and you have apparently only gotten more vocal and aggressive in your campaign to destroy their relationship. Every. 11 Single. Person who knows Jasha well said they blame you for the monster he became, because you are his biggest enabler BY FAR. For 12 his entire life, you taught him that he never has to consequences for his actions. You never taught him right from wrong. You only taught 13 him to dominate, manipulate, profit, and exploit. He never learned how to take responsibility for his actions because you and Herman 14 never taught him how. You spoiled him ROTTEN. I actually have a lot of compassion for him because I don’t know how anyone who was 15 raised by you could avoid turning out the way he did. 16 Compl. ¶ 49, Ex. G at ECF pp. 8-10. 17 Lekha alleges that she also became aware that Higgins had acquired her patients’ private 18 contact information and posted their names publicly, “thus violating their medical rights privacy” 19 and exposing Lekha to potential liability. Id. at ¶ 36. 20 Lekha alleges that her attempts to block Higgins on social media have led Higgins and Doe 21 Defendants to create new accounts under aliases “in order to continue their wrongful acts against” 22 Lekha. Id. at ¶ 37. Lekha alleges that Higgins’s false statements about Lekha “have caused her 23 significant emotional distress and created an ongoing apprehension that perceived wrongs will be 24 sought to be redressed extralegally . . . through continued defamation, harassment, cyber-bullying 25 and stalking as well as through the commission of violence against her.” Id. at ¶ 38. 26 Herman and Lekha allege that as a result of Higgins’s conduct and statement, they have 27 reduced or ceased their activity on social media despite its utility, especially during the COVID-19 1 touch with and witnessing the progression of the lives of his former students,” which has 2 “imposed a significant burden on what should otherwise be a period of well-earned professional 3 and personal satisfaction as well as rest, reflection, and acknowledgment for his service to his 4 students and his community.” Id. at ¶ 47. 5 Lekha’s “inability to engage on social media . . . has led to ongoing emotional distress and 6 concern that her business and reputation have been and will stay negatively impacted” by 7 Higgins’s conduct. Id. at ¶ 48. Additionally, Higgins and Doe Defendants have used the 8 @evidenceagainstspacejesus account “to make false statements directly and indirectly to” Lekha’s 9 personal Instagram account. These statements include that Lekha “has ‘abused’ her son Dr. Janak 10 Tull’s fiancé Joyce” and that Lekha “raised [Jasha] to be a ‘monster’ and ‘only taught him to 11 dominate, manipulate, profit, and exploit.’” Id. at ¶ 49. 12 C. Plaintiffs’ Claims 13 Jasha brings the following claims against Higgins: 1) defamation—libel; 2) harassment in 14 violation of California Code of Civil Procedure section 527.6; and 3) stalking in violation of 15 California Code of Civil Procedure section 1708.7. 16 Lekha and Herman bring claims for 1) harassment in violation of California Code of Civil 17 Procedure section 527.6; and 2) stalking in violation of California Code of Civil Procedure section 18 1708.7. Lekha also brings a separate claim for defamation—libel. 19 D. Procedural History 20 Plaintiffs filed their complaints on March 5, 2021. The court related the cases on March 21 25, 2021. Higgins now moves to dismiss the complaints and to strike portions of them. After 22 Higgins filed the instant motions, the court ordered Plaintiffs to file one combined brief in 23 opposition to the motions to dismiss and Higgins to file one brief in reply to the combined 24 opposition brief. The court also ordered Plaintiffs to file one combined brief in opposition to the 25 motions to strike and ordered Higgins to file one brief in reply to the combined opposition brief. 26 [Docket No. 28 in Case No. 21-cv-01566; Docket No. 28 in Case No. 21-cv-01574.] 27 II. LEGAL STANDARDS 1 A. Motion to Dismiss 2 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the claims alleged in 3 the complaint. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). 4 When reviewing a motion to dismiss for failure to state a claim, the court must “accept as true all 5 of the factual allegations contained in the complaint,” Erickson, 551 U.S. at 94 (citation omitted), 6 and may dismiss a claim “only where there is no cognizable legal theory” or there is an absence of 7 “sufficient factual matter to state a facially plausible claim to relief.” Shroyer v. New Cingular 8 Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 9 677-78 (2009); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001)) (quotation marks omitted). 10 A claim has facial plausibility when a plaintiff “pleads factual content that allows the court to 11 draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 12 U.S. at 678 (citation omitted). In other words, the facts alleged must demonstrate “more than 13 labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” 14 Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007) (citing Papasan v. Allain, 478 U.S. 265, 286 15 (1986)); see Lee v. City of L.A., 250 F.3d 668, 679 (9th Cir. 2001), overruled on other grounds by 16 Galbraith v. Cty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002). 17 As a general rule, a court may not consider “any material beyond the pleadings” when 18 ruling on a Rule 12(b)(6) motion. Lee, 250 F.3d at 688 (citation and quotation marks omitted). 19 However, “a court may take judicial notice of ‘matters of public record,’” id. at 689 (citing Mack 20 v. S. Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986)), and may also consider “documents 21 whose contents are alleged in a complaint and whose authenticity no party questions, but which 22 are not physically attached to the pleading,” without converting a motion to dismiss under Rule 23 12(b)(6) into a motion for summary judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 24 1994), overruled on other grounds by Galbraith, 307 F.3d at 1125-26. The court need not accept 25 as true allegations that contradict facts which may be judicially noticed. See Mullis v. U.S. Bankr. 26 Court, 828 F.2d 1385, 1388 (9th Cir. 1987). 27 B. Motion to Strike 1 Federal Rule of Civil Procedure 12(f) provides that a court “may strike from a pleading an 2 insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” A matter is 3 “immaterial” when it “has no essential or important relationship to the claim for relief or the 4 defenses being pleaded, while ‘[i]mpertinent’ matter consists of statements that do not pertain, and 5 are not necessary, to the issues in question.” Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th 6 Cir. 1993), rev’d on other grounds by Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994). The function 7 of a Rule 12(f) motion to strike is to avoid the expenditure of time and money that arises from 8 litigating spurious issues by dispensing of those issues before trial, and such a motion may be 9 appropriate where it will streamline the ultimate resolution of the action. Fantasy, 984 F.2d at 10 1527–28. “A motion to strike should be granted if it will eliminate serious risks of prejudice to the 11 moving party, delay, or confusion of issues.” Lee v. Hertz Corp., 330 F.R.D. 557, 560 (N.D. Cal. 12 2019) (citing Fantasy, 984 F.2d at 1528). “Motions to strike are regarded with disfavor [ ] 13 because of the limited importance of pleadings in federal practice and because they are often used 14 solely to delay proceedings.” Capella Photonics, Inc. v. Cisco Sys., Inc., 77 F. Supp. 3d 850, 858 15 (N.D. Cal. 2014) (quotation omitted). “The grounds for a motion to strike must appear on the face 16 of the pleading under attack,” and “the Court must view the pleading under attack in the light more 17 favorable to the pleader when ruling upon a motion to strike.” Amini Innovation Corp. v. 18 McFerran Home Furnishings, Inc., 301 F.R.D. 487, 489 (C.D. Cal. 2014) (citations omitted). 19 III. EVIDENTIARY ISSUES 20 Higgins submitted the same two exhibits with each of her motions to dismiss. [Docket 21 Nos. 24-1, 24-2 in Case No. 21-cv-01566; Docket Nos. 25-1, 25-2 in Case No. 21-cv-01574.] 22 Exhibit 1 appears to be a copy of a September 5, 2016 email from Herman to Higgins, Lekha, and 23 Jasha attaching a photograph of four individuals on a beach. It is not authenticated. Exhibit 2 is 24 an April 28, 2021 declaration by Christina Renee LaCoste in which LaCoste describes a sexual 25 assault by Jasha in 2017 and later communications between LaCoste and Higgins. Plaintiffs 26 object to both exhibits. [Docket No. 31, Case No. 21-cv-01566; Docket No 31, Case No. 21-cv- 27 1 01574.]5 2 In ruling on a Rule 12(b)(6) motion, a court ordinarily may not consider matters outside 3 the pleadings without converting a motion to dismiss into a motion for summary judgment. See 4 Lee, 250 F.3d at 688. “A court may, however, consider certain materials—documents attached to 5 the complaint, documents incorporated by reference in the complaint, or matters of judicial 6 notice—without converting the motion to dismiss into a motion for summary judgment.” United 7 States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). Incorporation by reference is “a judicially- 8 created doctrine that treats certain documents as though they are part of the complaint itself.” 9 Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1002. 10 As to Exhibit 1, Higgins states that Herman’s email attaching the photograph is part of 11 Exhibit F to the complaint (Ex. F at ECF p. 3), but that the email in Exhibit F is incomplete and 12 does not contain the photograph that was transmitted by the email. Mot. to Dismiss in Case No. 13 21-cv-01566 at 7 n.5; Mot. to Dismiss in Case No. 21-cv-01574 at 7 n.4. Higgins apparently 14 submits Exhibit 1 to provide a complete version of the email, but she neither authenticates the 15 document nor offers any authority for the court’s consideration of it. Her version of the email is 16 not attached to either of the complaints. It is also not incorporated by reference in the complaints, 17 because Plaintiffs do not “refer[ ] extensively to the [email]” and the email does not “form the 18 basis” of Plaintiffs’ claims. See Khoja, 899 F.3d at 1002 (incorporation by reference is 19 appropriate “if the plaintiff refers extensively to the document or the document forms the basis of 20 the plaintiff’s claim.” (quotation and citation omitted)). Moreover, it is not subject to judicial 21 notice. Accordingly, the court will not consider Exhibit 1 to Higgins’s motion to dismiss. 22 As to the LaCoste declaration, Higgins does not set forth the basis for the court’s 23 consideration of this document on a motion to dismiss. The declaration is not attached to the 24 25 5 Plaintiffs filed their objections in a separate seven-page brief in violation of Local Rule 7-3(a), which provides that “[a]ny evidentiary . . . objections to the motion must be contained within the 26 brief or memorandum” in opposition. The court will consider the objections, however, because even if Plaintiffs’ briefs had contained the objections, they would have stayed within the page 27 limits set by the court. The court denies Plaintiffs’ objections as moot because it separately 1 complaints or incorporated by reference into the complaints. It is also not subject to judicial 2 notice. The court cannot consider the LaCoste declaration in ruling on these motions. 3 IV. MOTIONS TO DISMISS 4 A. Defamation Claims 5 1. Jasha’s Defamation Claim 6 Jasha’s defamation claim is based on fourteen public statements that Higgins posted on 7 social media platforms. Jasha asserts that through these statements Higgins accuses Jasha of 8 “commit[ing] various criminal or otherwise wrongful acts, including rape, statutory rape, sexual 9 abuse, emotional abuse, and knowingly furnishing illicit substances to underage persons.” Jasha’s 10 Compl. ¶ 67; see id. at ¶¶ 41-45, 47-55 (detailing the statements at issue). Higgins argues that the 11 defamation claim must be dismissed because Jasha is a public figure and therefore must allege that 12 Higgins made the challenged statements with actual malice, which he has not done. 13 Under California law, a plaintiff bringing a defamation claim must establish: “(a) a 14 publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural 15 tendency to injure or that causes special damage.” Taus v. Loftus, 40 Cal. 4th 683, 720 (2007) 16 (quotation marks and citation omitted). Individuals who are considered public figures must also 17 prove that the defendant made the allegedly defamatory statements with “actual malice.” Makaeff 18 v. Trump Univ., LLC, 715 F.3d 254, 265 (9th Cir. 2013). Public figures include “artists, athletes, 19 business people, dilettantes, anyone who is famous or infamous because of who he is or what he 20 has done.” Manzari v. Associated Newspapers Ltd., 830 F.3d 881, 888 (9th Cir. 2016) (quoting 21 Cepeda v. Cowles Magazines & Broad., Inc., 392 F.2d 417, 419 (9th Cir. 1968)). An individual 22 may be a public figure for all purposes or in limited contexts. Id. 23 Jasha does not meaningfully dispute that he must establish actual malice for purposes of 24 his defamation claim but argues that the complaint satisfies this requirement. Opp’n 3 (“[t]o the 25 extent the ‘actual malice’ requirement is applicable to Jasha Tull, it is more than amply met.”).6 26 Actual malice requires a showing that a statement was made “with knowledge that it was 27 1 false or with reckless disregard of whether it was false or not.” New York Times Co. v. Sullivan, 2 376 U.S. 254, 280 (1964). “To demonstrate reckless disregard of the truth, [a plaintiff] must show 3 by clear and convincing evidence that [the speaker] ‘entertained serious doubts as to the truth’ of 4 her statements.” Makaeff, 715 F.3d at 270 (quoting Gertz, 418 U.S. at 331-32). “The existence of 5 actual malice turns on the defendant’s subjective belief as to the truthfulness of the allegedly false 6 statement.” Annette F. v. Sharon S., 119 Cal. App. 4th 1146, 1167 (2004) (citing Reader’s Digest 7 Ass’n v. Superior Court, 37 Cal. 3d 244, 257 (1984) (“the defendant’s belief concerning the 8 truthfulness of the publication is the crucial issue”)). “Actual malice may not be inferred solely 9 from evidence of personal spite, ill will, or bad motive”; instead, these factors, along with a failure 10 to investigate the truthfulness of a statement and reliance on sources known to be unreliable or 11 biased against the plaintiff, “may provide circumstantial evidence of actual malice in appropriate 12 cases . . . depending on the extent to which they reflect on the defendant’s subjective state of 13 mind.” Annette F., 119 Cal. App. 4th at 1169 (citations omitted); Reader’s Digest, 37 Cal. 3d at 14 258. Courts emphasize that evidence of “negligence, of motive and of intent . . . is relevant only 15 to the extent that it reflects on the subjective attitude of the publisher.” Reader’s Digest, 37 Cal. 16 3d at 257-58 (emphasis added). Additionally, where a speaker “republish[es] a third party’s 17 allegations, mere proof of [their] failure to investigate the veracity of such allegations does not 18 establish reckless disregard for the truth.” Makaeff, 715 F.3d at 270 (citing Gertz, 418 U.S. at 19 332). 20 “To determine whether a plaintiff adequately pleads actual malice, the court must 21 ‘disregard the portions of the complaint where [the Plaintiff] alleges in a purely conclusory 22 manner that the defendants had a particular state of mind in publishing the statements as 23 ‘[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 24 statements,’ are insufficient to support a cause of action.” Resolute Forest Prod., Inc. v. 25 Greenpeace Int’l, 302 F. Supp. 3d 1005, 1018 (N.D. Cal. 2017) (quoting Michel v. NYP Holdings, 26 Inc., 816 F.3d 686, 703-04 (11th Cir. 2016) (quoting Iqbal, 556 U.S. at 678)). Pleading actual 27 malice is a “demanding burden” and “general allegations that a defendant should have known or 1 Wynn v. Chanos, 75 F. Supp. 3d 1228, 1239 (N.D. Cal. 2014) (citations omitted); see also 2 McFarlane v. Esquire Mag., 74 F.3d 1296, 1308 (D.C. Cir. 1996) (“The standard of actual malice 3 is a daunting one.”). 4 The complaint makes one allegation regarding Higgins’s state of mind in making 5 statements about Jasha and retweeting statements by others about him: 6 Defendants, and each of them, have made public statements on social media platforms stating that [Jasha] has committed various criminal 7 or otherwise wrongful acts, including rape, statutory rape, sexual abuse, emotional abuse, and knowingly furnishing illicit substances 8 to underage persons. Defendants knew, or had reasonable cause to believe, that [Jasha] had not done so, as Defendants knew, or had 9 reasonable cause to believe, that [Jasha] did not commit said acts. Despite this, Defendants, and each of them, have continued to make 10 these statements which they know or had reasonable cause to believe were false. 11 12 Jasha’s Compl. ¶ 67 (emphasis added). This allegation lacks supporting details and is entirely 13 conclusory. It fails to satisfy the demanding burden of pleading actual malice. See Resolute 14 Forest, 302 F. Supp. 3d at 1018 (“States of mind may be pleaded generally, but a plaintiff still 15 must point to details sufficient to render a claim plausible.” (quoting Pippen v. NBCUniversal 16 Media, LLC, 734 F.3d 610, 614 (7th Cir. 2013))). 17 According to Jasha, his complaint alleges that Higgins is “propagating falsehoods with 18 reckless disregard of the truth” regarding his “nonconsenting sexual encounters with third parties,” 19 being a pedophile and a psychopath, providing illicit substances to minors, and committing 20 statutory rape. Opp’n 7. This is incorrect, as the complaint contains no allegations to support that 21 Higgins “propagate[ed] falsehoods with reckless disregard of the truth” regarding any subject. 22 Jasha further argues that Higgins “is defaming him by stating that he had sex with her without her 23 consent, which [Jasha] asserts is a lie that she has personal knowledge of the falsity of.” Id. This 24 also is not alleged in the complaint. As discussed above, the complaint makes the sole conclusory 25 allegation that Higgins knew or should have known that the statements are false (Jasha’s Compl. ¶ 26 67), but does not allege any facts to support a plausible inference that Higgins made the statements 27 with actual malice. 1 malice. He points to portions of his declaration in which he purportedly denies the truthfulness of 2 some of the statements at issue and calls them lies. Opp’n 5-7; Compl. Ex. A (Jasha Tull Decl., 3 Mar. 4, 2021) ¶¶ 75-79, 83-85. Citing to exhibits attached to the complaint is not a substitute for 4 asserting actual allegations about Higgins’s “attitude or state of mind with respect to the veracity” 5 of the statements she posted or retweeted, see Ampex Corp. v. Cargle, 128 Cal. App. 4th 1569, 6 1579 (2005). It is not the court’s responsibility to speculate about potential inferences that Jasha 7 might be trying to make. It is Plaintiff’s duty to assert clear allegations in his pleading. 8 Moreover, Jasha appears to conflate falsity with malice. He must allege falsity as an 9 element of his defamation claim, but falsity alone does not establish actual malice. To plead 10 actual malice, Jasha must allege facts to support that Higgins made the defamatory statements with 11 knowledge of their falsity, or reckless disregard of their truth or falsity. “[T]there is a significant 12 difference between proof of actual malice and mere proof of falsity.” Bose Corp. v. Consumers 13 Union of U.S. Inc., 466 U.S. 485, 511 (1984). See also Ampex, 128 Cal. App. 4th at 1579 (holding 14 that plaintiffs’ “declarations, simply summarizing certain comments and repeating that they were 15 false, were insufficient to establish a prima facie showing of constitutional malice”). 16 Jasha next argues that the complaint alleges circumstantial evidence of actual malice. He 17 points to allegations about the “ceaseless parade of threats and acknowledgment of threats” that 18 Higgins has “imposed upon him for over four and a half years.” Opp’n 8. These include 19 allegations that Higgins traveled to Plaintiffs’ vacation home and threatened to “destroy him 20 personally and professionally”; was distraught by the end of the relationship; told him she wished 21 he was dead, that she hated him, and that she wanted to “murder” him; and threatened him. Id. at 22 8-9 (citing Compl. ¶¶ 15, 18, 20, 22, 25). This is also insufficient. Actual malice “has nothing to 23 do with bad motive or ill will,” and “may not be inferred alone from evidence of personal spite, ill 24 will or intention to injure on the part of the writer.” Harte-Hanks Commc’ns, Inc. v. 25 Connaughton, 491 U.S. 657, 667 n.7 (1989). To be sure, evidence of “anger and hostility toward 26 the plaintiff . . . may, in an appropriate case, indicate that the publisher . . . had serious doubts 27 regarding the truth of [their] publication,” but “such evidence is relevant only to the extent that it 1 added). The complaint alleges no connection between Higgins’s alleged ill will or hatred toward 2 Jasha and her awareness that each of her statements were false or that she entertained serious 3 doubts about their truth. See Fletcher v. San Jose Mercury News, 216 Cal. App. 3d 172, 186 4 (1989) (“For appellant’s argument to satisfy the New York Times standard, appellant must link [the 5 reporter’s] statements [about the plaintiff, including that he was a ‘crook’ and a ‘crooked 6 politician’] to [the reporter’s] awareness of probable falsity.”). 7 Jasha also points to two statements by Higgins that he contends are “arguably direct 8 evidence of actual malice” as they are threats to “falsely accuse him of sexual abuse” and to 9 destroy his career. Opp’n 9-10. Only one of the statements is alleged in the complaint. Higgins 10 stated, “Karmas [sic] a bitch . . . wrongly accuse someone of sexual abuse and never apologize for 11 it, and you may end up getting wrongly accused yourself.” Compl. ¶ 23; Ex. E at ECF P. 26. 12 Jasha contends that this statement supports an inference that Higgins had knowledge of the falsity 13 of her claims about him. However, the statement is not tethered to any allegations about its timing 14 or context that would support such an inference.7 15 In sum, the court concludes that Jasha has failed to satisfy the “demanding burden” of 16 alleging actual malice as to the statements posted by Higgins about him. Accordingly, the court 17 dismisses Jasha’s defamation claim for failure to adequately allege actual malice with leave to 18 amend. See, e.g., Resolute Forest Prod., Inc. v. Greenpeace Int’l, No. 17-CV-02824-JST, 2019 19 WL 281370, at *8 (N.D. Cal. Jan. 22, 2019) (concluding that “it is proper to dismiss a complaint 20 when the Court concludes the plaintiff fails to plead actual malice as a matter of law.” (collecting 21 cases)); Resolute Forest, 302 F. Supp. 3d at 1018-20 (dismissing defamation claims with leave to 22 amend for failure to plead actual malice “with the requisite specificity”). 23 2. Lekha’s Defamation Claim 24 Lekha’s defamation claim is based on two types of allegedly false statements: 1) that 25 7 The second statement, which appears only in an exhibit to the complaint, is “Yes it is I, @caelila, 26 out to destroy Jasha’s career . . . [eyeroll emoji],” and was apparently posted on the profile page of the @evidenceagainstspacejesus Instagram account. Ex. H at ECF p. 1. Jasha omits and does not 27 address the eyeroll emoji that appears at the end of the statement, which may signal a lack of 1 Lekha “has knowledge of various wrongful acts, including criminal acts of a sexual nature, that 2 have been allegedly committed by her son, and that [Lehka’s] words and acts have enabled the 3 commission or some lack of accountability for said acts”; and 2) that Lekha “has wrongly and/or 4 unlawfully charged patients for COVID-19 testing.” Lekha/Herman Compl. ¶¶ 58, 59. 5 The complaint does not identify the specific statements that are allegedly defamatory. See 6 id. Instead, it quotes a lengthy social media post by Higgins that contains many statements about 7 various subjects, leaving the court to speculate about the particulars of Lekha’s defamation claim. 8 Id. at ¶ 49(a). This is insufficient. In Franchise Realty Interstate Corp. v. San Francisco Local 9 Joint Executive Bd. of Culinary Workers, 542 F.2d 1076, 1082-83 (9th Cir. 1976) the Ninth 10 Circuit held in an antitrust case that “in any case, whether antitrust or something else, where a 11 plaintiff seeks damages or injunctive relief, or both, for conduct which is prima facie protected by 12 the First Amendment, the danger that the mere pendency of the action will chill the exercise of 13 First Amendment rights requires more specific allegations than would otherwise be required.” 14 The Ninth Circuit recently held that “assuming Franchise Realty imposes a heightened pleading 15 requirement in defamation cases . . . a defamation complaint is sufficient under Franchise Realty 16 when it ‘lists the precise statements alleged to be false and defamatory, who made them and 17 when.’” Miller v. Sawant, 18 F.4th 328, 337 n.9 (9th Cir. 2021) (quoting Flowers v. Carville, 310 18 F.3d 1118, 1131 (9th Cir. 2002)). 19 Lekha’s complaint fails to meet this standard. This failure is particularly problematic 20 because Higgins argues that the allegedly defamatory statements “constitute nonactionable 21 opinions.” Mot. 8-10. The court cannot analyze this argument without a clear understanding of 22 the statements that Lekha claims are actionable.8 23 8 Whether a statement communicates a fact or a nonactionable opinion is a question of law for the 24 court to decide, Piping Rock Partners, Inc. v. David Lerner Assocs., Inc., 946 F. Supp. 2d 957, 970 (N.D. Cal. 2013), aff’d, 609 F. App’x 497 (9th Cir. 2015), and in making that assessment, the 25 court must examine “the totality of the circumstances in which [the statement] was made” using the following three factors: 26 (1) whether the general tenor of the entire work negates the 27 impression that the defendant was asserting an objective fact, (2) 1 Accordingly, Lekha’s defamation claims are dismissed with leave to amend to specifically 2 identify the statements at issue. 3 B. Civil Harassment Claims 4 1. Jasha’s Harassment Claim 5 Jasha’s second claim is for harassment in violation of California Code of Civil Procedure 6 section 527.6. The statute defines harassment as follows: 7 “Harassment” is unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person 8 that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be that which 9 would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the 10 petitioner. 11 Cal. Civ. Proc. Code § 527.6(b)(3). “Course of conduct” is defined as: 12 [A] pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including 13 following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual 14 by any means, including, but not limited to, the use of public or private mails, interoffice mail, facsimile, or email. Constitutionally 15 protected activity is not included within the meaning of “course of conduct.” 16 Cal. Civ. Proc. Code § 527.6(b)(1). 17 Jasha alleges that Higgins has “engaged in recurring and unwanted contact with [his] 18 personal and professional phone numbers, email addresses, and/or social media accounts,” and 19 “been subject to numerous unwanted communications from [Higgins] . . . including text messages, 20 phone calls, emails, and social media connections, which seek to falsely accuse him of being a 21 pedophile, a rapist, a perpetrator of sexual and emotional abuse, and of giving illicit substances to 22 minors with knowledge.” Compl. ¶¶ 79-80. He further alleges that Higgins has undertaken this 23 course of conduct for more than 4 ½ years, and that the “conduct has served no legitimate purpose, 24 25 susceptible of being proved true or false. 26 Lieberman v. Fieger, 338 F.3d 1076, 1080 (9th Cir. 2003) (citation omitted). Given the 27 complaint’s failure to identify the precise statements that Lekha alleged to be false and 1 serving only to make false accusations about [Jasha].” Id. at ¶¶ 82-83. 2 Higgins’s sole argument is that Jasha failed to state a claim for harassment because he has 3 not adequately alleged that the conduct at issue “serves no legitimate purpose.” Mot. 11. 4 “Legitimacy of purpose negates harassment.” Byers v. Cathcart, 57 Cal. App. 4th 805, 812 (1997) 5 (discussing section 527.6(b)). According to Higgins, the alleged course of conduct, “as evidenced 6 from the communications themselves, focuses almost entirely on [her] efforts to educate and seek 7 accountability from sexual assault offenders for herself and others and to clarify and understand 8 the disparaging remarks that [Jasha] was making about [Higgins].” Mot. 11. 9 Higgins’s argument is without merit because it ignores Jasha’s allegations that her private 10 and public statements to and about him are false. See Jasha’s Compl. ¶¶ 40-45, 47-55, 67, 80. 11 Higgins essentially asks the court to adopt her interpretation of the motivations behind her 12 statements and contact with Jasha. It may be that “[s]eeking recourse for perceived wrongs” and 13 “[i]nforming the public and encouraging an investigation into allegedly wrongful conduct” 14 constitute legitimate purposes under section 527.6(b). See Reply 12 (citing Hanna v. Moreira, No. 15 E070310, 2019 WL 3933564, at *3 (Cal. Ct. App. Aug. 20, 2019), and Principe v. Curry, No. 16 817CV00608JLSKESX, 2018 WL 1406912, at *3 (C.D. Cal. Jan. 3, 2018)). This is a factual 17 dispute which cannot be resolved at the pleading stage. Accordingly, Higgins’s motion to dismiss 18 Jasha’s harassment claim is denied. 19 2. Herman & Lekha’s Harassment Claims 20 Herman alleges that Higgins has “engaged in recurring and unwanted contact with [his] 21 personal and professional phone numbers, email addresses, and/or social media accounts,” and 22 that he has “endured numerous unwanted communications from [Higgins] . . . including emails 23 and social media communications, which seek to falsely accuse him of demeaning her and further 24 those statements through individuals familiar to him.” Compl. ¶¶ 69-70. He further alleges that 25 Higgins “repeatedly blind carbon copied [him] on her litany of emails to Jasha Tull’s management 26 company, evidencing a desire to show control over his son’s life and livelihood.” Id. at ¶ 70. The 27 content of these communications “falsely accuse him of demeaning Defendant Higgins and of 1 substance abuse and other mental health problems . . .” Id. at ¶ 72. He further alleges that this 2 conduct “has served no legitimate purpose, only making false accusations about [Herman] and 3 [Jasha], and creating substantial emotional distress . . . based on continually subjecting [Herman] 4 to these false accusations . . .” Id. at ¶ 74. 5 Lekha alleges that she “has endured continuing and numerous unwanted communications 6 from [Higgins] . . . which make various disparaging and false statements about her conduct as the 7 parent of her son,” as well as “disparaging and false statements about the conduct of her dentistry 8 practice including false allegations of taking pecuniary advantage of the COVID-19 pandemic.” 9 Id. at ¶¶ 75-76. Lekha further alleges that Higgins “has variously berated [Lekha] by text 10 message, sending at least twenty text messages at one time, demanding that [Lekha] accept her 11 false statements despite the lack of corroboration or independent evidence,” including accusations 12 that Jasha is a “severe drug addict,” “harassed unnamed individuals who reported it to Jasha’s 13 management company, [and] of allegedly committing unspecified grave harms when ‘blacked 14 out.’” Id. at ¶ 78. She alleges that this conduct has served no legitimate purpose. Id. at ¶ 81. 15 As with Jasha’s harassment claim, Higgins moves to dismiss the claim by Herman and 16 Lekha solely on the ground that the communications themselves identify “legitimate purposes,” 17 including concern for substance abuse, the availability of free COVID-19 testing, seeking 18 accountability and preventing sexual assaults, and keeping her private information private. Mot. 19 14-15. Again, this ignores the allegations in the complaint that the substance of Higgins’s 20 communications to Herman and Lekha were false. See Compl. ¶¶ 70, 72, 75, 76, 79. Factual 21 disputes cannot be decided on the pleadings. The motion to dismiss Herman and Lekha’s 22 harassment claims is therefore denied. 23 C. Civil Stalking Claims 24 1. Jasha’s Stalking Claim 25 Jasha’s third claim is for stalking in violation of California Code of Civil Procedure section 26 1708.7. An individual is liable for the tort of stalking when a plaintiff “proves all of the following 27 elements of” the statute: was to follow, alarm, place under surveillance, or harass the plaintiff. 1 . . . 2 (2) As a result of that pattern of conduct, either of the following occurred: 3 (A) The plaintiff reasonably feared for his or her safety, or the 4 safety of an immediate family member . . . 5 (B) The plaintiff suffered substantial emotional distress, and the pattern of conduct would cause a reasonable person to 6 suffer substantial emotional distress. 7 [and] 8 (3) One of the following: 9 (A) The defendant, as a part of the pattern of conduct specified in paragraph (1), made a credible threat with either (i) the 10 intent to place the plaintiff in reasonable fear for his or her safety, or the safety of an immediate family member, or (ii) 11 reckless disregard for the safety of the plaintiff or that of an immediate family member. In addition, the plaintiff must 12 have, on at least one occasion, clearly and definitively demanded that the defendant cease and abate his or her pattern 13 of conduct and the defendant persisted in his or her pattern of conduct unless exigent circumstances make the plaintiff's 14 communication of the demand impractical or unsafe. 15 (B) The defendant violated a restraining order . . . . 16 Cal. Civ. Code § 1708.7(a). 17 In other words, a plaintiff bringing a stalking claim must establish three elements: 18 First, a plaintiff must show that the defendant was engaged in a pattern of conduct with “the intent to follow, alarm, or harass the 19 plaintiff.” Second, a plaintiff must show that, as a result of the defendant’s conduct, the plaintiff “reasonably feared for his or her 20 safety, or the safety of an immediate family member.” Alternatively, a plaintiff may plead that she suffered “substantial emotional 21 distress,” which a reasonable person would also have suffered given the defendant’s pattern of conduct. Third, a plaintiff must show that 22 the defendant made a credible threat intending to place plaintiff in “reasonable fear for his or her own safety,” and that the defendant 23 persisted despite the fact that on at least one occasion, plaintiff made clear that the “defendant cease and abate his or her pattern of 24 conduct.” 25 Blazheiev v. Ubisoft Toronto Inc., No. 17-CV-07160-EMC, 2018 WL 3417481, at *7 (N.D. Cal. 26 July 13, 2018) (quoting Cal. Civ. Code § 1708.7) (internal citations omitted). The statute defines 27 “credible threat” as follows: communicated by means of an electronic communication device, or a 1 threat implied by a pattern of conduct, including, but not limited to, acts in which a defendant directly, indirectly, or through third parties, 2 by any action, method, device, or means, follows, harasses, monitors, surveils, threatens, or interferes with or damages the plaintiff's 3 property, or a combination of verbal, written, or electronically communicated statements and conduct, made with the intent and 4 apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the 5 safety of his or her immediate family. 6 Cal. Civ. Code § 1708.7(b)(2). 7 In relevant part, Jasha alleges that Higgins’s “repeated and unwanted communications 8 were made with the intent to harass [Jasha] in order to alarm, annoy, and torment [him].” Compl. 9 ¶ 88. He further alleges that the communications have caused him “reasonable fear for the safety 10 of his family, including his parents and brother” and for his own personal safety. The 11 communications, in the context of Higgins’s “threats . . . to ‘ruin’ [Jasha], escalating public 12 rhetoric made against him and his family, and [Higgins’s] recent social media post with a firearm, 13 have established and maintained in [him] a reasonable fear for his personal safety and that of his 14 family.” Id. at ¶ 90. 15 Higgins moves to dismiss Jasha’s stalking claim on the grounds that he does not plausibly 16 allege either a pattern of conduct with the intent to harass Jasha (element one) or a credible threat 17 to his safety (element three). Mot. 13. 18 As to the first argument, the statute requires Jasha to show a “pattern of conduct the intent 19 of which was to follow, alarm, place under surveillance, or harass” him. Cal. Civ. Code § 20 1708.7(a)(1). Higgins argues that the alleged course of conduct “focuses almost entirely on [her] 21 efforts to educate and seek accountability from sexual assault offenders for herself and others and 22 to clarify and understand the disparaging remarks that [Jasha] was making about” her. Mot. 13. 23 Therefore, she argues, Jasha’s allegations that her conduct did not have a legitimate intent but 24 served only to harass him is not plausible. Id. As discussed above in connection with the 25 harassment claims, Higgins’s argument fails because the question of Higgins’s intent is disputed 26 between the parties and cannot be decided at the pleadings stage. 27 As to the second argument, the statute requires Jasha to establish that Higgins “made a 1 safety of an immediate family member, or (ii) reckless disregard for” Jasha’s safety or that of an 2 immediate family member. Cal. Civ. Code § 1708.7(a)(3)(A). Jasha notes his allegations that 3 Higgins stated she “want[ed] to fucking murder” him, described him as her “enemy,” and told him 4 that “she would seek to destroy him personally and professionally” if he did not agree to renew 5 their relationship, “all while knowing where he and his family lived, and before she publicly 6 announced she owned a firearm.” Opp’n 18 (citing Compl. ¶¶ 15, 20, 90). While these 7 allegations may plausibly support the inference that Higgins’s statements and post with a firearm 8 placed Jasha in reasonable fear for his safety, he does not actually allege that Higgins made these 9 statements and posted the photograph with the firearm with the intent to place him in reasonable 10 fear. See Bolton v. City of Berkeley, No. 19-CV-05212-WHO, 2019 WL 6250927, at *4 (N.D. 11 Cal. Nov. 22, 2019) (finding that “[s]imply listing the number of encounters with the [defendants] 12 is not enough” to plead that they “made a credible threat towards him with the intent to place him 13 in reasonable fear” (emphasis in original)); Blazheiev, 2018 WL 3417481, at *8 (“there is no 14 indication that Defendants knowingly or willfully sent the emails to harass Plaintiff” (emphasis in 15 original)). Accordingly, Jasha has failed to state a claim for stalking under section 1708.7. The 16 claim is dismissed with leave to amend. 17 2. Herman & Lekha’s Stalking Claims 18 Herman and Lekha allege that Higgins’s communications have caused them “to be put in 19 reasonable fear for their safety and that of their son, Jasha,” and that her “ongoing harassing 20 communications to [Lekha], in the context of [Higgins’s] threats . . . to ‘ruin’ [Jasha], and 21 escalating public rhetoric made against him directly, have established and maintained in [Herman 22 and Lekha] a reasonable fear for their and [Jasha’s] personal safety.” Compl. ¶ 89. Further, they 23 allege that Higgins’s “public pronouncement of firearm ownership and recent proximity to 24 Plaintiffs and their family have caused them to seriously fear that violent acts may be perpetrated 25 by [Higgins], doe defendants, or unrelated third parties.” Id. 26 Higgins argues that Herman and Lekha’s stalking claims must be dismissed for the same 27 reasons as Jasha’s; namely, that they do not plausibly allege either a pattern of conduct with the 1 The outcome mirrors the analysis of Jasha’s stalking claim. For the reasons discussed above, the 2 court finds that Higgins’s first argument is not well-taken because it asks the court to adopt 3 Higgins’s version of events at the pleading stage. Higgins is correct, however, that the complaint 4 fails to state a stalking claim because Herman and Lekha do not allege that Higgins acted with the 5 intent to place them in reasonable fear. 6 Additionally, Higgins argues that Herman and Lekha have not stated a stalking claim 7 because the statute requires them to establish that they “have, on at least one occasion, clearly and 8 definitively demanded that [Higgins] cease and abate . . . her pattern of conduct and [Higgins] 9 persisted in . . . her pattern of conduct unless exigent circumstances make [Herman and Lekha’s] 10 communication of the demand impractical or unsafe.” Cal. Civ. Code § 1708.7(a)(3)(A). Higgins 11 notes that the complaint fails to allege that Herman and Lekha “clearly and definitively 12 demanded” that Higgins cease her conduct. Mot. 17. Herman and Lekha do not respond to this 13 argument in their opposition and thus concede it. Therefore, their failure to allege that they 14 demanded that Higgins cease her conduct is an additional basis to dismiss the stalking claim. 15 Herman and Lekha’s stalking claims are dismissed with leave to amend. 16 V. MOTIONS TO STRIKE 17 Higgins moves to strike the following six allegations in Jasha’s complaint: 18 1. Paragraph 2, page 2, lines 8 through 10 “Plaintiff is informed and believes that Defendant 19 Higgins was also acting under and/or utilizing the pseudonym or screen name 20 ‘@sensualintelligence’ on the ‘onlyfans.com’ platform.” 21 2. Paragraph 48, page 13, lines 12 through 14, “On or about June 26, 2020, the Twitter 22 account ‘@caelila’ stated ‘You’re an actual, factual psychopath @spacejesus.’ This 23 is false and a lie, Plaintiff is not a psychopath.” 24 3. Paragraph 49, page 13, lines 15 through 18, “On or about June 29, 2020, the Twitter 25 account ‘@caelila’ stated that ‘Whatever personality disorder Trump has (is it psychosis? 26 megalomania? just straight up soul-less?, jasha has it too. They operate the exact same 27 way.’ This false and a lie, Plaintiff does not have a personality disorder.” 1 ‘@caelila’ retweeted a tweet from ‘Dmoney0101’ stating ‘So disheartening to see 2 @bassnectar @spacejesus and @NahkoBear exposed as sexual predators all in one 3 week…’ ‘@caelila’’s adoption and promotion of this statement amounts to an assertion 4 that Plaintiff is a sexual predator, which is false and a lie.” 5 5. Paragraph 52, page 14, lines 1 through 4, “On or about July 5, 2020, the Twitter account 6 ‘@caelila’ retweeted a tweet from ‘@deadsoonshawty’ stating ‘burnt all our pedophile 7 merch last night :) FUCK YOU @spacejesus.’ Defendant Michaela Higgins/Caeli La’s 8 retweet via ‘@caelila’ amounts to an adoption and assertion Plaintiff is a pedophile, which 9 is false and a lie.” 10 6. Paragraph 54, page 14, lines 8 through 11, “On August 9, 2020, ‘@caelila’ retweeted a 11 tweet from ‘@shambhalaaa888’ stating that Plaintiff had raped Defendant Michaela 12 Higgins/Caeli La. ‘@caelila’’s adoption and promotion of this statement amounts to an 13 assertion that Plaintiff raped Defendant Michaela Higgins/Caeli La, which is a lie.” 14 Mot. to Strike Portions of Jasha’s Compl. 2. 15 The first allegation at issue, in which Jasha references Higgins’s OnlyFans.com 16 pseudonym, also appears in Herman and Lekha’s complaint at paragraph 3 lines 16-18. Higgins 17 moves to strike this allegation from Herman and Lekha’s complaint. Mot. to Strike Portions of 18 Herman/Lekha’s Compl. 2. She does not challenge any other portion of Herman and Lekha’s 19 complaint in her motion to strike. 20 A. Reference to OnlyFans 21 In identifying Higgins as a party, Jasha identifies her states of residency and identifies the 22 pseudonyms she uses on Instagram and Twitter. Compl. ¶ 2. He alleges on information and belief 23 that Higgins “was also acting under and/or utilizing the pseudonym or screen name 24 ‘@sensualintelligence’ on the ‘onlyfans.com’ platform.” Id. The complaint then references 25 statements and posts allegedly made by Higgins using her various pseudonyms on Instagram and 26 Twitter. Jasha’s Compl. ¶¶ 40-45, 47, 48-54. Jasha further alleges that in December 2020, his 27 attorney transmitted letters to Twitter and Facebook, as the owner of Instagram, in which counsel 1 62. Aside from the reference to OnlyFans.com in paragraph 2, the complaint never again refers to 2 or mentions Higgins’s alleged pseudonym on OnlyFans.com, and never alleges that any of the 3 conduct challenged in this lawsuit occurred on or in connection with that platform. 4 Similarly, Herman and Lekha’s complaint includes the allegation, “Plaintiffs are informed 5 and believe that [Higgins] was also acting under and/or utilizing the pseudonym or screen name 6 ‘@sensualintelligence’ on the ‘onlyfans.com’ platform.” Herman/Lekha’s Compl. ¶ 3. Other than 7 this allegation, their complaint does not refer to or mention Higgins’s alleged pseudonym on 8 OnlyFans.com. 9 Higgins argues that the court should strike the reference to her alleged pseudonym 10 @sensualintelligence on OnlyFans.com in both complaints as immaterial, impertinent, and 11 scandalous. She contends that OnlyFans.com “is heavily stigmatized due to its overwhelming 12 association with the sex industry, nude modeling, and pornography . . .” Mot. to Strike Portions of 13 Jasha’s Compl. 2 n.2; Mot. to Strike Portions of Herman/Lekha’s Compl. 2 n.2. Higgins argues 14 that the inclusion of the reference is immaterial and impertinent, since the complaint does not 15 challenge any conduct arising in connection with OnlyFans.com or make any other allegations 16 related to that platform. She further argues that the inclusion of this reference is scandalous and 17 serves only to smear her and her credibility by the association to sex work. 18 In response, Plaintiffs contend that Higgins has used a variety of aliases “to defame and 19 harass” them, and that they have not yet determined whether the alleged defamation has occurred 20 via the OnlyFans.com platform. According to Plaintiffs, it is possible that Higgins has used the 21 platform to defame them. Therefore, they argue, the OnlyFans.com alias clearly bears on their 22 claims. Opp’n 3. Additionally, they contend that the reference to OnlyFans.com stands on its 23 own in the complaints, “without context, characterization, or ridicule,” and that they do not cast 24 aspersions on Higgins in connection with her presence on the platform. Id. at 4. 25 The fact that Plaintiffs have not identified any defamatory statements occurring on the 26 OnlyFans.com platform demonstrates its irrelevance to the issues in these cases. To the extent that 27 Plaintiffs eventually identify any such statements or conduct in connection with the platform in the 1 However, the court finds that the references to Higgins’s OnlyFans.com account are presently 2 immaterial and impertinent and should be stricken on that basis. See Fantasy, 984 F.2d at 1527 (a 3 matter is “immaterial” when it “has no essential or important relationship to the claim for relief or 4 the defenses being pleaded, while ‘[i]mpertinent’ matter consists of statements that do not pertain, 5 and are not necessary, to the issues in question.”).9 6 B. Statements about Jasha’s Mental Disorders & Retweets 7 Higgins next asserts that the second and third references to Jasha’s complaint set forth 8 above, which contain statements that Jasha is a “psychopath” and has a “personality disorder,” are 9 immaterial to this matter as nonactionable opinions. Mot. 5. Additionally, she challenges the 10 fourth through sixth references set forth above, which are retweets by the @caelila Twitter account 11 of other users’ tweets. According to Higgins, these references are immaterial because they are not 12 actionable under federal law. Id. at 6. Essentially, Higgins argues that these references should be 13 struck as immaterial because the statements at issue cannot form the basis for defamation claims 14 as a matter of law. See id. at 5-7. If Higgins believes that such statements are not actionable, she 15 should have made the argument with supporting authority as part of her motion to dismiss, not as a 16 motion to strike. “A Rule 12(f) motion is not a proper method to procure dismissal of all or part of 17 a complaint or counterclaim.” Oracle Corp. v. DrugLogic, Inc., 807 F. Supp. 2d 885, 896 (N.D. 18 Cal. 2011) (citing Consumer Sols. REO, LLC v. Hillery, 658 F. Supp. 2d 1002, 1020 (N.D. Cal. 19 2009)). Higgins’s Rule 12(f) motion is an “attempt to have certain portions of [Jasha’s] complaint 20 dismissed,” an action “better suited for a Rule 12(b)(6) motion . . . not a Rule 12(f) motion.” See 21 Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 974 (9th Cir. 2010). Accordingly, this 22 portion of Higgins’s motion to strike is denied. 23 VI. CONCLUSION 24 The motions to dismiss the complaints are granted in part and denied in part. Jasha’s 25 defamation claim is dismissed with leave to amend facts supporting actual malice. Jasha’s 26 stalking claim is dismissed with leave to amend to allege that Higgins engaged in conduct with the 27 1 intent to place him in reasonable fear or facts supporting such an inference. 2 Lekha’s defamation claim is dismissed with leave to amend to list the specific statements 3 alleged to be defamatory. Herman and Lekha’s stalking claims are dismissed with leave to amend 4 || to allege that Higgins engaged in conduct with the intent to place them in reasonable fear or facts 5 supporting such an inference, and that they “clearly and definitively demanded” that Higgins cease 6 || her conduct unless exigent circumstances made such communication impractical or unsafe. 7 Higgins’s motion to strike portions of Jasha’s complaint is granted in part and denied in 8 || part. The motion to strike with respect to Herman and Lekha’s complaint is granted. 9 Within 14 days of the date of this order, Plaintiffs shall file amended complaints in 10 || accordance with the court’s order on the motions to dismiss. Plaintiffs’ amended complaints must 11 || also omit the stricken references to OnlyFans.com. KE DISTR yy SON IT IS SO ORDERED. ky DIO 14 || Dated: December 27, 2021 2/\11 ~ < 7 Lye aa Hood Safe □□□ 6 TaNnell States Maesertte Judge JA, oS £ AY or □□ 18 Sp OY DISTRICS 19 20 21 22 23 24 25 26 27 28