1 DEFENDANT LOS ANGELES MAGAZINE’S MEMORANDUM IN SUPPORT OF ITS SPECIAL MOTION TO STRIKE PURSUANT TO CCP SEC. 425.16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gordon Rees Scully Mansukhani, LLP 101 W. Broadway, Suite 2000 San Diego , CA 92101 MILES D. SCULLY (SB N: 135853) mscully@grsm.com TIMOTHY K. BRANSON (SBN: 187242) tbranson@grsm.com GABRIEL G. HEDRICK (SBN: 220649) ghedrick@grsm.com GORDON REES SCULLY MANSUKHANI, LLP 101 W. Broadway, Suite 2000 San Diego, CA 92101 Telephone: (619) 230-7422 Facsimile: (619) 696-7124 Attorneys for Defendant LOS ANGELES MAGAZINE , LLC SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES YASHAR ALI, an individual, Plaintiff, vs. LOS ANGELES MAGAZINE, LLC, a California limited liability company; and DOES 1-20, inclusive, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 22STCV18984 DEFENDANT LOS ANGELES MAGAZINE LLC’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS SPECIAL MOTION TO STRIKE PURSUANT TO CCP SEC. 425.16 Filed and Served Concurrently with: 1. Notice of Motion and Motion to Strike Pursuant to C.C.P. Sec. 425.16 2. Declaration of Steven Christianson; 3. Declaration of Peter Kiefer; 4. Declaration of Maer Roshan; 5. [Proposed] Order Date: January 24, 2023 Time: 10:00 a.m. Dept.: 61 Judge: Hon. Gregory Keosian Reservation ID: 984082585326 Complaint Filed: June 9, 2022 Trial Date: Not Set Electronically FILED by Superior Court of California, County of Los Angeles on 12/23/2022 01:54 PM Sherri R. Carter, Executive Officer/Clerk of Court, by V. Sino-Cruz,Deputy Clerk 2 DEFENDANT LOS ANGELES MAGAZINE’S MEMORANDUM IN SUPPORT OF ITS SPECIAL MOTION TO STRIKE PURSUANT TO CCP SEC. 425.16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gordon Rees Scully Mansukhani, LLP 101 W. Broadway, Suite 2000 San Diego , CA 92101 TABLE OF CONTENTS Page INTRODUCTION AND SUMMARY OF ARGUMENT ............................................................. 5 STATEMENT OF FACTS ............................................................................................................. 5 ARGUMENT .................................................................................................................................. 8 I. Ali’s Claims Are Subject To A Special Motion To Strike Pursuant To CCP § 425.16...................................................................................................................... 8 A. Ali’s Claims Arise From The Exercise Of The Magazine’s Right Of Free Speech In Connection With A Public Issue. ............................................... 8 1. The Allegedly Defamatory Statements Were Made In A Public Forum. ............................................................................................. 9 2. The Article Concerned Issues Of Interest To The Public. ............ 10 3. The Article Was An Exercise Of The Magazine’s Right Of Free Speech. .......................................................................................... 12 II. Ali Will Not Be Able To Establish That He Is Likely To Prevail On His Claims. ............................................................................................................................... 12 CONCLUSION ............................................................................................................................. 14 3 DEFENDANT LOS ANGELES MAGAZINE’S MEMORANDUM IN SUPPORT OF ITS SPECIAL MOTION TO STRIKE PURSUANT TO CCP SEC. 425.16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gordon Rees Scully Mansukhani, LLP 101 W. Broadway, Suite 2000 San Diego , CA 92101 TABLE OF AUTHORITIES Page(s) Cases Barrett v. Rosenthal (2006) 40 Cal.4th 33 ............................................................................................................. 9, 10 Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036 ..................................................................................................... 12 Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal. 4th 1106 ........................................................................................................ 8, 13 City of Cotati v. Cashman (2002) 29 Cal.4th 69 ................................................................................................................... 8 Curtis Publishing Co. v. Butts (1967) 388 U.S. 130 .................................................................................................................. 13 Episcopal Church Cases (2009) 45 Cal.4th 467 ................................................................................................................. 8 Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53 ............................................................................................................. 8, 13 Gertz v. Robert Welch, Inc. (1974) 418 U.S. 318 .................................................................................................................. 13 Gilbert v. Sykes (2007) 147 Cal.App.4th 13 ....................................................................................................... 12 Hecmovich v. Encinal School Parent Teacher Org. (2012) 203 Cal.App.4th 450 ..................................................................................................... 12 Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855 ....................................................................................................... 10 Lieberman v. KCOP Television, Inc. (2011) 110 Cal. App. 4th 156 ................................................................................................... 12 Navellier v. Sletten (2002) 29 Cal.4th 82 ............................................................................................................. 8, 13 Nygård, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027 ......................................................................................... 8, 10, 12 Reader’s Digest Ass’n .v. Superior Court (1982) 37 Cal. 3d 244 ............................................................................................................... 13 Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811 ............................................................................................................... 13 4 DEFENDANT LOS ANGELES MAGAZINE’S MEMORANDUM IN SUPPORT OF ITS SPECIAL MOTION TO STRIKE PURSUANT TO CCP SEC. 425.16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gordon Rees Scully Mansukhani, LLP 101 W. Broadway, Suite 2000 San Diego , CA 92101 Zhao v. Wong (1996) 48 Cal.App.4th 1114 ..................................................................................................... 10 Statutes Code of Civil Procedure Section 425.16 .................................................................................................... 5, 7, 8, 9, 12, 15 5 DEFENDANT LOS ANGELES MAGAZINE’S MEMORANDUM IN SUPPORT OF ITS SPECIAL MOTION TO STRIKE PURSUANT TO CCP SEC. 425.16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gordon Rees Scully Mansukhani, LLP 101 W. Broadway, Suite 2000 San Diego , CA 92101 INTRODUCTION AND SUMMARY OF ARGUMENT This case is essentially a defamation claim arising from statements in an article about plaintiff Yashar Ali that was published by defendant Los Angeles Magazine LLC (“the Magazine”). The First Amended Complaint also includes a cause of action that alleges the Magazine fraudulently induced Ali to provide certain statements that were used in the article and a cause of action that alleges that the Magazine breached an agreement that it would not use statements made by Ali without his consent. California Code of Civil Procedure section 425.16 provides that claims arising from a defendant’s exercise of its right of free speech in connection with issues of interest to the public must be dismissed unless the plaintiff demonstrates he is likely to prevail on the claims. Ali’s claims arise from the Magazine’s publication of the article. The publication of the article was an exercise of the Magazine’s right of free speech concerning issues of interest to the public. Therefore, Ali’s claims are subject to a motion to strike pursuant to C.C.P. sec. 425.16, and they must be dismissed unless Ali demonstrates that he is likely to prevail the claims. Ali will not be able to demonstrate that he is likely to prevail on his claims. Ali is a public figure. He is, in his own words, a journalist of great renown who was named by Time Magazine as one of the 25 most influential people on the internet. (First Amended Complaint (“FAC”), ¶ 1.) He will not be able to submit evidence sufficient to meet the burden a public figure plaintiff must meet in order to prevail on a defamation claim, e.g., making the required evidentiary showing that the Magazine acted with actual malice. Ali will not be able to establish that he is likely to prevail on his fraud claim because he will not be able to produce evidence that he sustained any injury as a result of the publication of the statements he claims he was fraudulently induced to provide. Ali will not be able to prevail on the purported cause of action for breach of contract because it is essentially a disguised defamation claim, and Ali will not be able to show the Magazine acted with actual malice. STATEMENT OF FACTS Plaintiff Yashar Ali is a well-known investigative journalist and internet influencer. 6 DEFENDANT LOS ANGELES MAGAZINE’S MEMORANDUM IN SUPPORT OF ITS SPECIAL MOTION TO STRIKE PURSUANT TO CCP SEC. 425.16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gordon Rees Scully Mansukhani, LLP 101 W. Broadway, Suite 2000 San Diego , CA 92101 (FAC, ¶¶ 1, 11.) He has a Twitter feed with over 700,000 followers that he uses to disseminate his views on numerous issues and to advocate for various causes. (Declaration of Peter Kiefer (“Kiefer Decl.”), ¶ 4; Declaration of Steven Christianson (“Christianson Decl.”), ¶ 3, Exhibit 2.) He was named by Time Magazine as one of the 25 most influential people on the internet in 2019. (FAC, ¶ 1.) He was Gavin Newsom’s deputy chief of staff. (Kiefer Decl., ¶ 3; Declaration of Maer Roshan (“Roshan Decl.”), ¶ 7.) He organized fundraisers for Hillary Clinton. (Kiefer Decl., ¶ 3; Roshan Decl., ¶ 7.) He established and administered crowdfunding campaigns for COVID victims. (Kiefer Decl., ¶ 3; Roshan Decl., ¶ 7; Christianson Decl., ¶ 4, Ex. 2.) He lived in the homes of heiress Ariadne Getty and comedienne Kathy Griffin. (Kiefer Decl., ¶ 3; Roshan Decl., ¶ 7.) Defendant Los Angeles Magazine is a limited liability company that published Los Angeles Magazine up until December of this year. (Roshan Decl., ¶ 2.) That publication is disseminated and available to the general public on several internet platforms, including the Magazine’s internet website and links on its Facebook pages, Twitter feed and Instagram pages. (Roshan Decl., ¶ 3.) Readers and the public can comment on and discuss the articles published in the Magazine on the Magazine’s Facebook pages, Twitter feed and Instagram pages. (Roshan Decl., ¶ 3.) In June of 2021, the Magazine published an article about Ali. (Roshan Decl., ¶ 4.) The article discussed: Ali’s rise to political power as the deputy chief of staff to Gavin Newsom and an organizer of fundraisers for Hillary Clinton; his career as an investigative journalist and his often dogged reporting of facts that adversely affected the reputations and careers of high profile people such as Harvey Weinstein, CBS executive Les Moonves, Fox New anchors Kimberly Guilfoyle and Eric Bolling, New York Times columnist Alison Roman, television personality Sharon Osbourne, Los Angeles mayor Eric Garcetti and Garcetti’s aide Rick Jacobs, and ABC New executive Barbara Fedida; his disputes with several prominent public figures, including a lawsuit filed by Ms. Getty; his creation and possibly improper self-administration of a crowd funding campaign for COVID victims in which he urged the use of Venmo and CashApp payments directly to him or to people who sought donations; his disclosure on his Twitter feed 7 DEFENDANT LOS ANGELES MAGAZINE’S MEMORANDUM IN SUPPORT OF ITS SPECIAL MOTION TO STRIKE PURSUANT TO CCP SEC. 425.16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gordon Rees Scully Mansukhani, LLP 101 W. Broadway, Suite 2000 San Diego , CA 92101 that he was experiencing depression and suicidal ideations; and his followers’ expressions of support and concern for his mental health. (Roshan Decl., Ex. 1.) All of the facts stated or implied in the article were rigorously fact checked and confirmed prior to publishing the article. (Roshan Decl., ¶ 5; Kiefer Decl., ¶ 2.) The author and editor of the article believed, and still believe, that all of the facts stated or implied in the article were true. They did not have doubts, and do not now have doubts, about the truth of any of the statements in the article. (Roshan Decl., ¶ 5; Kiefer Decl., ¶ 2.) On June of 2022, Ali filed the original Complaint in this action. The original Complaint asserted two causes of action. The first cause of action was for defamation. It alleged that the article contains numerous statements about Ali that are false and defamatory or that imply false and defamatory “facts” about Ali. (Complaint, ¶¶ 10-21.) The second cause of action was for fraud. It alleged that, in order to induce Ali to provide information for the article, the author of the article and the Magazine fraudulently promised Ali that statements Ali made about Kathy Griffin would not be included in the article, but the Magazine then included several of Ali’s statements concerning Griffin in the article. (Complaint, ¶¶ 22-28.) On or about December 21, 2022, Ali filed a First Amended Complaint. The first cause of action is still for defamation, but it now only alleges that three statements in the article are false, and it deleted allegations from the original Complaint that several other statements in the article were false. (FAC, ¶¶ 9-20.) The Amended Complaint expressly states that those allegations were deleted because Ali understood the Magazine was going to file a motion to strike pursuant to C.C.P. sec. 425.16. (FAC, ¶ 9.) Ali clearly knew that those deleted allegations could not survive a motion to strike. The Amended Complaint still contains the promissory fraud claim asserted in the original Complaint. It also added a third cause of action alleging that the Magazine breached an oral agreement that it would not quote statements made by Ali in the article without his consent. The gist of that cause of action, however, is actually that Ali’s reputation was damaged, i.e., he was defamed, because the article falsely stated or implied that Ali stated that he did not regret attacking people he considered to be his friends. (FAC, ¶¶ 29-34.) 8 DEFENDANT LOS ANGELES MAGAZINE’S MEMORANDUM IN SUPPORT OF ITS SPECIAL MOTION TO STRIKE PURSUANT TO CCP SEC. 425.16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gordon Rees Scully Mansukhani, LLP 101 W. Broadway, Suite 2000 San Diego , CA 92101 ARGUMENT I. Ali’s Claims Are Subject To A Special Motion To Strike Pursuant To CCP § 425.16 California Code of Civil Procedure sec. 425.16 provides that any lawsuit arising out of a defendant’s exercise of the right of free speech in connection with a public issue is subject to a special motion to strike. When such a motion to strike is filed, a two-pronged analysis is conducted by the court. ( Episcopal Church Cases (2009) 45 Cal.4th 467, 477; Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67; C.C.P. ; § 425.16, subd. (b)(1) ) The Court must first determine if the action arises from the defendant’s exercise of the right of free speech in connection with a public issue. If the Court determines that it does, then the Court must determine whether the plaintiff’s opposition papers establish that he is likely to prevail on his claims. ( Equilon Enterprises , 29 Cal.4th 53, 67; City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76; Navellier v. Sletten ( 2002) 29 Cal.4th 82, 88-89.) If the court determines that the plaintiff has not established that he is likely to prevail on his claims, then the Court must dismiss the case. ( Equilon Enterprises , 29 Cal.4th 53, 67; Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal. 4 th 1106, 1123-1124) C.C.P. section 425.16 , including the term “public issue,” is to be construed broadly. (C.C.P., § 425.16 (a); Nygård, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1039-1042.) A. Ali’s Claims Arise From The Exercise Of The Magazine’s Right Of Free Speech In Connection With A Public Issue. C.C.P. section 425.16 (e) identifies four categories of conduct that constitute “acts in furtherance of a person’s right of free speech in connection with a public issue.” Category (3) is any statement made in a public forum in connection with an issue of public interest. Category (4) is any other conduct in furtherance of the right of free speech in connection with an issue of public interest. (C.C.P., §§ 425.16 (e) (3) and (4).) The statute clearly applies to Ali’s claims. All three causes of action arise out of the Magazine’s exercise of its right of free speech in connection with issues of interest to the public. They arise from the publication of an article distributed by the Magazine in a public forum about a renowned public figure whose life, career, exploits and views are unquestionably of interest to 9 DEFENDANT LOS ANGELES MAGAZINE’S MEMORANDUM IN SUPPORT OF ITS SPECIAL MOTION TO STRIKE PURSUANT TO CCP SEC. 425.16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gordon Rees Scully Mansukhani, LLP 101 W. Broadway, Suite 2000 San Diego , CA 92101 the public. 1. The Allegedly Defamatory Statements Were Made In A Public Forum. The allegedly defamatory statements were published in an article that was disseminated on the internet, the largest public forum in the world. The article was disseminated to, and accessible by, the general public on the Magazine’s internet website, its Facebook pages, its Twitter feed and its Instagram pages. (Roshan Decl., ¶ 3.) The internet and those three social media platforms are all public forums in which issues are debated and discussed and views are expressed. The public could (and did) respond to, debate and/or comment on the statements and views expressed in the article on the Magazine’s Facebook pages, Twitter feed or Instagram pages, or on any of literally thousands of internet discussion sites and boards. (Roshan Decl., ¶ 3.) Hundreds of comments about or in response to the article were posted on Twitter. (Roshan Decl., ¶ 6.) Publishing observations and expressing views on the internet in general and these three social media platforms in particular is the modern day equivalent of nailing a treatise to the door of City Hall or the local church, passing out leaflets in the town square or standing on a soap box and making a speech in a city park, only with a much larger audience. The internet in general, and publicly accessible Facebook pages, Twitter feeds and Instagram pages in particular, are the epitome of public forums. The California Supreme Court expressly recognized and confirmed this in Barrett v. Rosenthal (2006) 40 Cal.4th 33. In Barrett , the Supreme Court stated that an action arising from statements disseminated on an internet website was subject to a motion to strike pursuant to C.C.P. sec. 425.16 because the statements were made in a public forum. The Supreme Court expressly held that “Web sites accessible to the public ... are ‘public forums’ for purposes of the anti-SLAPP statute.” ( Barrett v. Rosenthal (2006) 40 Cal.4th 33, 41, fn. 4.) Some cases that were decided in the early days of internet use, more than 10 years before Barrett and the widespread availability and use of internet discussion boards and social media platforms, held that newspapers that did not permit the public to comment on articles that were published in the newspapers were not public forums because the public did not have the 10 DEFENDANT LOS ANGELES MAGAZINE’S MEMORANDUM IN SUPPORT OF ITS SPECIAL MOTION TO STRIKE PURSUANT TO CCP SEC. 425.16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gordon Rees Scully Mansukhani, LLP 101 W. Broadway, Suite 2000 San Diego , CA 92101 opportunity to respond and participate in the discussion and debate. (See, e.g., Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855 and Zhao v. Wong (1996) 48 Cal.App.4th 1114, 1131.) However, in a later case decided after Barrett , Nygård, Inc. v. Uusi-Kerttula ((2008) 159 Cal.App.4th 1027), the court reiterated the holding in Barrett and held that, because of the development of the internet, statements in a newspaper or magazine article that was disseminated on the internet were made in a public forum even though the public was not able to comment on the article or express opposing viewpoints in the newspaper or magazine itself. The court explained that, in a “cyber world,” the underlying premise of the older cases (that newspapers did not provide a forum in which the public could participate in any discussion or debate) was no longer applicable because statements and views in newspapers and magazines are now disseminated in a larger public forum, the internet, which provides ample opportunity and means for the general public to discuss and debate the information and views expressed in newspapers and magazines even if the public cannot express their views or debate the issues in the newspaper or magazine itself. ( Nygard, 159 Cal.App.4th at 1037-1038.) The court in Nygard also noted that the definition of a public forum is to be construed broadly. ( Nygard, 159 Cal.App.4th at 1038.) As noted above, the article that is the subject of this action was disseminated and accessible on the Magazine’s internet website, Facebook pages, Twitter feed and Instagram pages, and the public could, and did, comment on and discuss the article on those social media platforms. Therefore, the statements made in the article were undeniably made in a public forum in which the general public could both read and discuss or respond to the statements in the article. 2. The Article Concerned Issues Of Interest To The Public. The article clearly concerned matters of interest to the public. The article examined and discussed the life, career, accomplishments, exploits, struggles and viewpoints of an openly gay American Iranian who converted to Catholicism and became: the deputy chief of staff for the mayor of San Francisco and future governor of California, a political fundraiser for Hillary Clinton, a renowned investigative journalist, an animal rights advocate, one of the 25 most 11 DEFENDANT LOS ANGELES MAGAZINE’S MEMORANDUM IN SUPPORT OF ITS SPECIAL MOTION TO STRIKE PURSUANT TO CCP SEC. 425.16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gordon Rees Scully Mansukhani, LLP 101 W. Broadway, Suite 2000 San Diego , CA 92101 influential people on the internet (with over 700,000 followers on Twitter) and an advisor to Ariadne Getty and Kathy Griffin. (Ex.1 to Roshan Decl.) How this powerful, prominent person did that, and how he uses his power and influence, are issues of public interest. The article also discussed Ali’s history of uncovering and reporting facts that adversely affected the reputations and careers of high profile people such as Harvey Weinstein, CBS executive Les Moonves, Fox New anchors Kimberly Guilfoyle and Eric Bolling, New York Times food columnist Alison Roman, television personality Sharon Osbourne, Los Angeles mayor Eric Garcetti and his aide Rick Jacobs, and ABC New executive Barbara Fedida. The article discusses Ali’s use of the Twitter platform to disclose the facts he discovered about these people and to disseminate his views and opinions on multiple issues, e.g., protecting elephants, to an audience of over 700,000 people. The article discusses Ali’s solicitation of donations for COVID victims in which he asked that Venmo or CashApp payments be made to either him personally or directly to the purported victims of COVID. The article concludes with a discussion of Ali’s very public battle with depression and suicidal ideations that Ali shared with his 700,000 plus followers on Twitter. (Ex.1 to Roshan Decl.) All of these issues are clearly of interest to the public. Ali himself found that the issues identified in the previous paragraph were of sufficient interest to warrant investigating and reporting and/or discussing them on his public Twitter feed, in articles he wrote or contributed to in the HuffPost and other publications, and in his Substack newsletter and other social media platforms. (Kiefer Decl., ¶ 4.) Samples of some of his tweets on these subjects are attached to the Declaration of Steven Christianson at Exhibit 2. (Christianson Decl., ¶¶ 3, 4 and Ex. 2.) These issues have also been discussed by other writers in dozens of other publications. (Christianson Decl., ¶ 3 and Ex. 1.) Ali’s life and career are undeniably of interest to the public, as are his exploits and the conduct discussed in the article, including the manner in which he uses his fame, influence and public Twitter feed to disclose facts, expose significant misbehavior of prominent figures, express his views and influence people. Like the anti-SLAPP statute itself, the question of whether something is an issue of 12 DEFENDANT LOS ANGELES MAGAZINE’S MEMORANDUM IN SUPPORT OF ITS SPECIAL MOTION TO STRIKE PURSUANT TO CCP SEC. 425.16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gordon Rees Scully Mansukhani, LLP 101 W. Broadway, Suite 2000 San Diego , CA 92101 public interest must be ‘construed broadly. ( Hecmovich v. Encinal School Parent Teacher Org. (2012) 203 Cal.App.4th 450, 464 (quoting Gilbert v. Sykes, (2007) 147 Cal.App.4th 13, 23).) [A]n issu e of public interest’ within the meaning of section 425.16, subdivision (e)(3) is any issue in which the public is interested. In other words, the issue need not be ‘significant’ to be protected by the anti-SLAPP statute—it is enough that it is one in which the public takes an interest.” ( Nygård, 159 Cal.App.4th at 1039-1042.) 3. The Article Was An Exercise Of The Magazine’s Right Of Free Speech. Even if the state ments in the article were not made in a public forum, they would still constitute conduct in furtherance of the exercise of the right of free speech under section 425.16 (e)(4). The right to free speech that is guaranteed in the California Constitution protects statements that are spoken, written or published. (Cal. Const., art. I, § 2 (“[e]very person may freely speak, write, and publish his or her sentiments on all subjects”).) The right to free speech encompasses and applies to articles and broadcasts concerning matters of public interest that are published by media organizati ons. ( Lieberman v. KCOP Television, Inc. (2011) 110 Cal.App.4th 156, 164; Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1047, fn. 5.) Both r eporting and gathering information concerning subjects of interest to the public constitute conduct in furtherance of a media organization’s right of free speech. Therefore, claims arising from either reporting or gathering information for the reports are subject to a motion brought under C.C. P. section 425.16, if the media organization’s report concerns an issue of public interest. ( Lieberman , 110 Cal.App.4th 156, 164; Braun , 52 Cal.App.4th 1036, 1047, fn. 5.) As the Court in Braun noted: “[N]ews reporting activity is free speech.” (emphasis in original) ( Braun , 52 Cal.App.4th at 1046.) As noted in the previous section of this memorandum, the article from which the claims in this case arise clearly reported and discussed information and issues of interest to the public. Therefore, even if the public forum provision in subsection (e)(3) of section 425.16 did not apply, subsection (e)(4)’s catch all provision does apply to the claims asserted by Ali in this case. II. Ali Will Not Be Able To Establish That He Is Likely To Prevail On His Claims. If the Court determines that the statute applies to the claims in this action, then the case 13 DEFENDANT LOS ANGELES MAGAZINE’S MEMORANDUM IN SUPPORT OF ITS SPECIAL MOTION TO STRIKE PURSUANT TO CCP SEC. 425.16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gordon Rees Scully Mansukhani, LLP 101 W. Broadway, Suite 2000 San Diego , CA 92101 must be dismissed unless Ali demonstrates he is likely to prevail on his claims. ( Equilon Enterprises , 29 Cal.4th at 67; Briggs , 19 Cal.4th 1106, 1123-1124. ) To demonstrate the required probability of prevailing, a plaintiff opposing a special motion to strike must make a prima facie showing of facts sufficient to support a judgment in his favor. ( Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821; Navellier , 29 Cal.4th 82, 89.) Ali will not be able to prevail on his defamation claims because Ali will not be able to make the evidentiary showing that a public figure plaintiff in a defamation case is required to make in order to prevail. I n order to prevail on a defamation claim, a plaintiff who is a public figure must be able to demonstrate that the defendant acted with actual malice. ( Curtis Publishing Co. v. Butts (1967) 388 U.S. 130, 131-138; Reader’s Digest Ass’n .v. Superior Court (1982) 37 Cal. 3d 244, 253.) There are two categories of public figures: “all purpose” public figures and “limited purposes” public figures. An “all purposes” public figure is one who is well-known, has sought out public notoriety, and has sufficient access to the media and the public to be able to respond effectively to allegedly defamatory statements about him. A “limited purposes” public figure is one who has voluntarily thrust himself into or sought to influence the public on the specific issues or controversies that are relevant to the lawsuit. ( Gertz v. Robert Welch, Inc. (1974) 418 U.S. 318, 351; Reader’s Digest , 37 Cal. 3d 244, 253-254.) Ali qualifies as a public figure under both categories. He concedes in the Complaint that he is a renowned journalist. (FAC, ¶¶ 1, 11.) He has over 700,000 followers on Twitter. (Kiefer Decl., ¶ 4; Christianson Decl., ¶ 3.) He regularly uses his Twitter feed to express his views and influence the public on numerous issues and controversies including those discussed in the article that is the subject of this lawsuit. (Kiefer Decl., ¶ 4; Christianson Decl., ¶ 3 and Ex. 2.) He was named by Time Magazine as one of the 25 most influential people on the internet. (FAC, ¶¶ 1.) He was a fundraiser for Hillary Clinton. (Kiefer Decl., ¶ 3; Roshan Decl., ¶ 7.) He was the deputy chief of staff of the mayor of San Francisco. (Kiefer Decl., ¶ 3; Roshan Decl., ¶ 7.) He clearly is well-known, influential, powerful, politically savvy, and knows how to use the media to respond to allegedly defamatory statements. He has affirmatively thrust himself into 14 DEFENDANT LOS ANGELES MAGAZINE’S MEMORANDUM IN SUPPORT OF ITS SPECIAL MOTION TO STRIKE PURSUANT TO CCP SEC. 425.16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gordon Rees Scully Mansukhani, LLP 101 W. Broadway, Suite 2000 San Diego , CA 92101 and/or has sought to influence the public about the issues discussed in the article. Ali will not be able to make the prima facie showing that a public figure in a defamation case is required to make in order to prevail at trial. He will not be able to present the required evidence that the Magazine acted with actual malice. All of the facts stated or implied in the article were fact checked and confirmed prior to publishing the article. (Roshan Decl., ¶ 5; Kiefer Decl, at ¶ 2.) The author and editor of the article believed that all of the facts stated or implied in the article were true. They did not have doubts about the truth of any of the statements in the article. (Roshan Decl., ¶ 5; Kiefer Decl., ¶ 2.) Ali will not be able to prevail on his fraud claim because he will not be able to make a prima facie showing that he sustained any injury as a result of the publication of statements he made about Kathy Griffin. The Complaint does not identify which statements about Ms. Griffin caused him to sustain any injury or loss, nor does it state how the publication of those unidentified statements caused him to sustain an injury or the nature of the injury. None of the statements about Griffin that were attributed to Ali in the article were at all disparaging of her. Ali will not be able to prevail on his purported breach of contract claim because it is actually a defamation claim. It alleges that Ali’s reputation was damaged, i.e., he was defamed, because the article falsely states that he said he had no remorse about attacking people who were his friends. Because it is really a defamation claim, Ali cannot prevail for the same reason he cannot prevail on the first cause of action for defamation: he cannot present the required evidence that the Magazine acted with actual malice. That cause of action also repeats the allegation in the second cause of action that the Magazine promised it would not include statements Ali made about Kathy Griffin, but that allegation or claim is subject to the same defense as the second cause of action: Ali will not be able to present evidence that he sustained any injury as a result of the statements he made about Ms. Griffin. CONCLUSION Ali’s claims arise out of statements made in a public forum about matters of interest to the public, and the preparation and publication of the article constitute conduct in furtherance of the Magazine’s right of free speech in connection with issues of interest to the public. Ali will 15 DEFENDANT LOS ANGELES MAGAZINE’S MEMORANDUM IN SUPPORT OF ITS SPECIAL MOTION TO STRIKE PURSUANT TO CCP SEC. 425.16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gordon Rees Scully Mansukhani, LLP 101 W. Broadway, Suite 2000 San Diego , CA 92101 not be able to establish a likelihood that he will prevail on his claims. Therefore, the Complaint must be dismissed pursuant to C.C.P. section 425.16. Dated: December 2 3 , 2022 GORDON REES SCULLY MANSUKHANI, LLP By: Miles D. Scully Timothy K. Branson Gabriel G. Hedrick Attorneys for Defendant LOS ANGELES MAGAZINE, LLC