Steep Hill Laboratories, Inc et al v. Moore

Filing 41

ORDER by Judge Laurel Beeler denying 8 Motion to Strike ; granting in part and denying in part 9 Motion to Dismiss ; and denying 31 Motion for Preliminary Injunction.For the reasons set forth in the attached order:The court de nies Mr. Moore's anti-SLAPP motion to strike.The court grants Mr. Moore's motion to dismiss (1) Steep Hill's claim for intentional interference with prospective economic relations, (2) both plaintiffs' claims for intentional in terference with contractual relations, (3) Mr. Keller's claim for civil stalking, and (4) Mr. Keller's claim for breach of contract. These dismissals are without prejudice, and the plaintiffs may file an amended complaint within fourteen days of the date of this order. The court denies Mr. Moore's motion to dismiss Steep Hill's claim for defamation.The court denies the plaintiffs' motion for a preliminary injunction. (lblc1S, COURT STAFF) (Filed on 3/8/2018)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

San Francisco Division

United States District Court
Northern District of California

11

STEEP HILL LABORATORIES, INC, et al.,

Case No. 18-cv-00373-LB

Plaintiffs,

12

16

ORDER (1) DENYING DEFENDANT’S
ANTI-SLAPP MOTION TO STRIKE
COMPLAINT, (2) GRANTING IN PART
AND DENYING IN PART
DEFENDANT’S MOTION TO DISMISS,
AND (3) DENYING PLAINTIFFS’
MOTION FOR A PRELIMINARY
INJUNCTION

17

Re: ECF Nos. 8, 9, 31

13
14
15

v.
DAVID HAROLD MOORE,
Defendant.

18
INTRODUCTION

19
20
21
22
23
24
25
26
27
28

Plaintiffs Steep Hill Laboratories, Inc. and its CEO Jmichaele Keller bring this action against
David Harold Moore, a former employee of another company also owned at one point by Mr.
Keller. Mr. Moore has been handing out fliers at industry trade conferences and mailing fliers to
Steep Hill business contacts. The fliers accuse Mr. Keller of being, among other things, a
“diagnosed sociopath” with “narcissistic personality disorder,” a “proven sexual harasser” who
tried to “seduce [an individual] into a three way sexual encounter during the interview process,”
and a “greedy demonic scumbag” who “left wife destitutute [sic] w PTSD” and “fleeced” and
“robbed” his former business partner and his wife. Mr. Moore also maintains a website, where he
posts claims that Mr. Keller is a “homosexual predator” who fired Mr. Moore because Mr. Moore
ORDER – No. 18-cv-00373-LB

1

refused to have sex with him. Additionally, at a trade conference in November 2017, Mr. Moore

2

allegedly approached Mr. Keller, body-slammed him three times, and had to be physically pulled

3

off him by three people.
Steep Hill and Mr. Keller bring claims against Mr. Moore for (1) defamation, (2) intentional

4
5

interference with prospective economic relations, and (3) intentional interference with contractual

6

relations. Mr. Keller additionally brings individual claims for (4) false-light invasion of privacy,

7

(5) civil stalking, (6) breach of contract, and (7) intentional infliction of emotional distress.1

8

Mr. Moore moves to dismiss Mr. Keller’s claims for (1) intentional interference with

9

contractual relations, (2) civil stalking, and (3) breach of contract, and moves to dismiss all of
Steep Hill’s claims.2 Mr. Moore also moves to strike the entire complaint under California Code of

11
United States District Court
Northern District of California

10

Civil Procedure § 425.16, the state’s Strategic Lawsuits Against Public Participation (“SLAPP”)

12

law.3 He argues that his statements are protected free speech and that the court should therefore

13

strike the entire complaint under the anti-SLAPP statute. The plaintiffs, for their part, move for a

14

preliminary injunction ordering Mr. Moore to (1) take down his website, (2) refrain from

15

distributing any type of defamatory communication about them, and (3) not go within one hundred

16

feet of Mr. Keller or Steep Hill’s business.4
For the reasons set forth below, the court:

17
18

1. denies Mr. Moore’s anti-SLAPP motion to strike,

19

2. grants Mr. Moore’s motion to dismiss (a) Steep Hill’s claim for intentional interference

20

with prospective economic relations, (b) both plaintiffs’ claims for intentional

21

interference with contractual relations, (c) Mr. Keller’s claim for civil stalking, and

22
1

23
24
25
26

The plaintiffs originally brought their claims in California state court. Mr. Moore removed to federal
court on the basis of diversity jurisdiction. The court has jurisdiction because this action is between a
Delaware corporation based in California and an individual in the Netherlands, on the one hand, and a
Nevadan individual, on the other, and the amount in controversy exceeds $75,000. 28 U.S.C.
§ 1332(a)(3).
Def.’s Mot. to Dismiss – ECF No. 9. Citations refer to material in the Electronic Case File (“ECF”);
pinpoint citations are to the ECF-generated page numbers at the top of documents.
2

3

27

Def.’s Mot. to Strike – ECF No. 8.

4

Pls.’ Mot. for Prelim. Injunction – ECF No. 31-2.

28
ORDER – No. 18-cv-00373-LB

2

1

(d) Mr. Keller’s claim for breach of contract, and denies Mr. Moore’s motion to

2

dismiss Steep Hill’s claim for defamation, and
3. denies the plaintiffs’ motion for a preliminary injunction.

3
4

STATEMENT5

5

Defendant David Harold Moore was an employee of MeetingMatrix, a company owned at one

6
7

point by plaintiff Jmichaele Keller, from 2000 to 2002.6 In September 2002, MeetingMatrix

8

terminated Mr. Moore.7 Following his termination, Mr. Moore claimed that he was owed part of

9

the ownership of MeetingMatrix and refused to return some MeetingMatrix property that he

10

retained in his possession.8
In 2002, MeetingMatrix filed a lawsuit against Mr. Moore, which was ultimately settled out of

United States District Court
Northern District of California

11
12

court.9 Following the settlement, MeetingMatrix and Mr. Moore entered into a General Release

13

and Confidentiality Agreement (“Agreement”).10 Among other things, the Agreement provided

14

that “[t]he parties agree not to make, utter, publish, reveal or otherwise disseminate any remarks

15

disparaging, defaming, negating, or diminishing the conduct, status, nature, or character of the

16

other party, their officers, directors, shareholders, servants, employees, agents, and/or their

17

attorneys.”11 The Agreement also contained a liquidated damages provision that provided that

18

“Moore agrees to use his best efforts to comply with the provisions of this Agreement. If Moore

19

breaches this Agreement, MeetingMatrix shall be entitled to liquidated damages of sixteen

20

thousand dollars ($16,000). The parties agree that this clause represents a reasonable estimate of

21

the fees involved in settling this matter, which would be lost by MeetingMatrix in the event of a

22
23

25
26

Unless otherwise noted, the fact allegations in the Statement are from the Complaint.

6

Compl. – ECF No. 1 at 5–6 (¶ 8).

7

24

5

Id. at 6 (¶ 9).

8

Id.

9

Id.

28

Id.; Compl. Ex. A (Agreement) – ECF No 38-1.

11

27

10

Compl. – ECF No. 1 at 6 (¶ 11); Compl. Ex. A (Agreement) – ECF No. 38-1 at 6 (¶ 4.B).

ORDER – No. 18-cv-00373-LB

3

1

breach of this Agreement and is not a penalty.”12 (Mr. Keller was not himself a party to the

2

Agreement.13)

3

In 2015, Mr. Keller became CEO of Steep Hill.14

4

In November 2017, when Mr. Keller was attending the Marijuana Business Conference in Las

5

Vegas on behalf of Steep Hill, Mr. Moore approached him and started yelling at him loudly,

6

during which time a large number of people around them could hear him.15 Mr. Moore then body-

7

slammed Mr. Keller three times and pushed him back against an exhibit booth until three people

8

physically pulled him off Mr. Keller.16 While being escorted out of the conference, Mr. Moore

9

threatened several bystanders, saying that he “will kick their fucking ass.”17
Mr. Moore also wrote and distributed fliers about Mr. Keller and Steep Hill to various

10

United States District Court
Northern District of California

11

attendees at the conference.18 Among other things, the fliers described Mr. Keller as a “diagnosed

12

sociopath” with “narcissistic personality disorder,” a “proven sexual harasser” who tried to

13

“seduce [an individual] into a three way sexual encounter during the interview process,” and a

14

“greedy demonic scumbag” who “left wife destitutute [sic] w PTSD.”19 The fliers additionally

15

stated, in reference to Mr. Keller, “partner jerry murdered,” “Jerry’s wife fleeced for $,” and

16

“minority partner robbed.”20 The fliers stated, “DO NOT TRUST STEEP HILL LABS NEW

17

OWNER AND CEO J. MICHAEL KELLER.”21 Mr. Moore also sent these fliers to several of

18

Steep Hill’s business contacts and investors.22

19
12

Compl. – ECF No. 1 at 6 (¶ 12); Compl. Ex. A (Agreement) – ECF No. 38-1 at 7 (¶ 4.D).

13

See Compl. Ex. A (Agreement) – ECF No 38-1.

14

Compl. – ECF No. 1 at 6 (¶ 14).

22

15

Id. at 6–7 (¶ 15).

23

16

Id.

17

Id. at 7 (¶ 16).

18

Id. (¶ 17).

25

19

Id. at 7, 9 (¶¶ 17, 25–26).

26

20

Id. at 7 (¶ 17).

21

Id. at 7, 9 (¶¶ 17, 26).

22

Id. at 7 (¶ 17).

20
21

24

27
28

ORDER – No. 18-cv-00373-LB

4

1

The plaintiffs allege that Mr. Moore’s actions have tainted their investors’ perception of Mr.

2

Keller’s integrity.23 Four of Steep Hill’s current investors have requested teleconferences with Mr.

3

Keller following Mr. Moore’s attack on him, asking for an explanation of Mr. Moore’s statements,

4

fliers, and actions, and expressing concern in the context of weighing whether to invest further in

5

Steep Hill.24
In addition to the fliers, Mr. Moore has also created a website that contains additional

6
7

statements about Mr. Keller.25 On his website, Mr. Moore claims that Mr. Keller is a “homosexual

8

predator” who professed his love for Mr. Moore, sexually harassed Mr. Moore, and then fired Mr.

9

Moore for refusing to have sex with him.26
Mr. Keller alleges that Mr. Moore’s statements and actions have caused severe embarrassment

10

United States District Court
Northern District of California

11

and mental and emotional anguish, disrupted his personal life, and negatively impact Steep Hill’s

12

business and his career.27 The plaintiffs allege that Steep Hill’s business concerns have been

13

impacted by the loss of investor confidence, which impairs their ability to seek and obtain

14

continued financial support as the company grows.28
The plaintiffs assert that Mr. Moore’s statements are false and unfounded.29

15
16
17
18

ANALYSIS
1. Anti-SLAPP Motion to Strike

19

1.1

20

California Code of Civil Procedure § 425.16 is called the anti-SLAPP statute because it allows

21

Standard of Review

a defendant to gain early dismissal of claims that are designed primarily to chill the exercise of

22
23

Id. at 7–8 (¶ 18).

24

Id.

25

Id. at 8 (¶ 19).

25

26

Id.

26

27

Id. (¶¶ 21–22).

28

Id. (¶ 22).

29

Id. at 9 (¶ 23).

23
24

27
28

ORDER – No. 18-cv-00373-LB

5

1

First Amendment rights. Siam v. Kizilbash, 130 Cal. App. 4th 1563, 1568 (2005). Section

2

425.16(b)(1) provides:

3
4
5
6
7
8
9
10

United States District Court
Northern District of California

11
12
13

A cause of action against a person arising from any act of that person in furtherance
of the person’s right of petition or free speech under the United States Constitution
or the California Constitution in connection with a public issue shall be subject to a
special motion to strike, unless the court determines that there is a probability that
the plaintiff will prevail on the claim.
And Section 425.16(e) provides that acts “in furtherance of” these rights include:
(1) any written or oral statement or writing made before a legislative, executive, or
judicial proceeding, or any other official proceeding authorized by law;
(2) any written or oral statement or writing made in connection with an issue under
consideration or review by a legislative, executive, or judicial body, or any other
official proceeding authorized by law;
(3) any written or oral statement or writing made in a place open to the public or a
public forum in connection with an issue of public interest; or
(4) any other conduct in furtherance of the exercise of the constitutional right of
petition or the constitutional right of free speech in connection with a public issue
or an issue of public interest.

14

California’s anti-SLAPP statute applies to state claims in federal court. Thomas v. Fry’s

15

Elecs., Inc., 400 F.3d 1206, 1206–07 (9th Cir. 2005).

16

In ruling on an anti-SLAPP motion, a court engages in a two-step process. Equilon Enters. v.

17

Consumer Cause, Inc., 29 Cal. 4th 53, 67 (2002). First, the court decides whether the defendant

18

has made a threshold showing that the challenged cause of action arises from acts in furtherance of

19

the defendant’s right of petition or free speech under the United States or California constitutions

20

in connection with a public issue. Id. Second, “[i]f the court finds such a showing has been made,

21

it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.”

22

Id. The claim is subject to dismissal only when (1) the defendant shows that the claim is based on

23

protected conduct and (2) the plaintiff fails to show a probability of success on that claim.

24

Navellier v. Sletten, 29 Cal. 4th 82, 88–89 (2002).

25

For the first part of the test, a defendant must make a prima-facie showing that the claim

26

“arises from” his conduct “in furtherance of” his exercise of free speech or petition rights as

27

defined in Section 425.16(e). Equilon, 29 Cal. 4th at 61. “For purposes of the anti-SLAPP statute,

28

a cause of action ‘arises from’ conduct that it is ‘based on.’” Graham-Sult v. Clainos, 756 F.3d
ORDER – No. 18-cv-00373-LB

6

1

724, 735 (9th Cir. 2013) (citing Copenbarger v. Morris Cerullo World Evangelism, 215 Cal. App.

2

4th 1237, 1244–45 (2013)). Thus, a court must ask what activities form the basis for each of the

3

plaintiff’s claims. Id. The court then must ask whether those activities are “protected” and thereby

4

bring the claim within the scope of the anti-SLAPP statute. Id. (citing Wallace v. McCubbin, 196

5

Cal. App. 4th 1169, 1182–84 (2011)). Arguments about the merits of the plaintiff’s claims or the

6

defendant’s defenses are irrelevant in the first step of the anti-SLAPP analysis: for example, in a

7

defamation case, it does not matter whether defendant actually made the statements he or she is

8

alleged to have made, whether the statements were true or not, or whether they were defamatory or

9

not. See, e.g., City of Costa Mesa v. D’Alessio Inv., LLC, 214 Cal. App. 4th 358, 371–72 (2013).
The “first step only determines whether section 425.16’s procedural protection applies” to the

11
United States District Court
Northern District of California

10

alleged activities in question. Id. at 371 (emphasis in original).

12

For the second part of the test, the burden then shifts to the plaintiff to establish as a matter of

13

law that no such protection exists. Governor Gray Davis Comm. v. Am. Taxpayers Alliance, 102

14

Cal. App. 4th 449, 456 (2002). To establish a probability of prevailing, a plaintiff must

15

demonstrate that the complaint is legally sufficient and supported by a sufficient prima-facie

16

showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is

17

credited. Premier Med. Mgmt. Sys., Inc. v. Cal. Ins. Guar. Ass’n, 136 Cal. App. 4th 464, 476

18

(2006). The plaintiff also must present evidence to overcome any privilege or defense to the claim

19

that has been raised. Flatley v. Mauro, 39 Cal. 4th 299, 323 (2006).

20

In federal court, if an anti-SLAPP motion challenges the legal sufficiency of the plaintiff’s

21

complaint, then federal pleading standards apply, and the motion is decided under the same

22

standards as a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Rogers v. Home

23

Shopping Network, Inc., 57 F. Supp. 2d 973, 982–83 (C.D. Cal. 1999). By contrast, if an anti-

24

SLAPP motion challenges the plaintiff’s alleged failure of proof, the motion is decided in federal

25

court under the same standards as a motion for summary judgment under Federal Rule of Civil

26

Procedure 56. Id.; accord Metabolife Int’l, Inc. v. Wornick, 264 F.3d 832, 846 (9th Cir. 2001)

27

(adopting Rogers standard).

28
ORDER – No. 18-cv-00373-LB

7

In any action subject to the anti-SLAPP statute, “a prevailing defendant on a special motion to

1
2

strike shall be entitled to recover his or her attorney’s fees and costs.” Cal. Code Civ. P.

3

§ 425.16(c); Verizon Del., Inc. v. Covad Commc’ns Co., 377 F.3d 1081, 1091 (9th Cir. 2004).

4
“Public Issue” or “Issue of Public Interest”

5

1.2

6

As noted above, certain statements made “in connection with a public issue or an issue of

7

public interest” are covered by the anti-SLAPP statute. Cal. Code Civ. P. § 425.16(e)(3)–(4).30
“The anti-SLAPP statute does not define the terms ‘public issue’ or ‘issue of public interest.’”

8

Baughn v. Dep’t of Forestry & Fire Prot., 246 Cal. App. 4th 328, 335 (2016). California courts

10

have held, however, that there must be some attributes of the issue which make it one of public,

11
United States District Court
Northern District of California

9

rather than merely private, interest. A few guiding principles may be derived from decisional

12

authorities.” Id. (internal quotation marks omitted) (quoting Weinberg v. Feisel, 110 Cal. App. 4th

13

1122, 1132 (2003)):
“. . . . First, ‘public interest’ does not equate with mere curiosity. Second, a matter
of public interest should be something of concern to a substantial number of
people. Thus, a matter of concern to the speaker and a relatively small, specific
audience is not a matter of public interest. Third, there should be some degree of
closeness between the challenged statements and the asserted public interest; the
assertion of a broad and amorphous public interest is not sufficient. Fourth, the
focus of the speaker’s conduct should be the public interest rather than a mere
effort ‘to gather ammunition for another round of [private] controversy . . . .’
Finally, ‘those charged with defamation cannot, by their own conduct, create their
own defense by making the claimant a public figure.’ A person cannot turn
otherwise private information into a matter of public interest simply by
communicating it to a large number of people.”

14
15
16
17
18
19
20

Id. (quoting Weinberg, 110 Cal. App. 4th at 1132–33 (internal citations omitted)). “[I]n cases

21
where the issue is not of interest to the public at large, but rather to a limited, but definable portion
22
of the public (a private group, organization, or community), the constitutionally protected activity
23
must, at a minimum, occur in the context of an ongoing controversy, dispute or discussion, such
24
25
26
27

30

The anti-SLAPP statute also covers certain statements made in connection with governmental or
quasi-governmental proceedings. Cal. Code Civ. P. § 425.16(e)(1)–(2). As Mr. Moore does not claim
those sections apply, see Def.’s Mot. to Strike – ECF No. 6, this opinion focuses on Sections
425.16(e)(3) and (4).

28
ORDER – No. 18-cv-00373-LB

8

1

that it warrants protection by a statute that embodies the public policy of encouraging

2

participation in matters of public significance.” Du Charme v. IBEW, Local 45, 110 Cal. App. 4th

3

107, 119 (2003) (emphasis in original).

4

“In evaluating the first prong of the anti-SLAPP statute, [courts] must focus on ‘the specific

5

nature of the speech rather than generalities that might be abstracted from it.” World Fin. Grp.,

6

Inc. v. HBW Ins. & Fin. Servs., Inc., 172 Cal. App. 4th 1561, 1570 (2009) (emphasis in original)

7

(quoting Dyer v. Childress, 147 Cal. App. 4th 1273, 1280 (2007)). Courts have therefore rejected

8

attempts to re-characterize statements arising from private workplace disputes as statements on a

9

“public issue” or an “issue of public interest” for the purpose of the anti-SLAPP statute.

10

For example, in Rivero v. American Federation of State, County, and Municipal Employees,

United States District Court
Northern District of California

11

AFL-CIO, 105 Cal. App. 4th 913 (2003), an employee union published newsletters accusing a

12

janitorial supervisor of soliciting bribes, harassing employees, and hiring and showing favoritism

13

to his family members. Id. at 916–17. The supervisor sued for defamation. Id. at 917. The union

14

filed an anti-SLAPP motion to strike, arguing that its statements concerned unlawful workplace

15

activity and abusive supervision, which were matters of public interest. Id. at 919. The California

16

Court of Appeal rejected that argument, holding that “unlawful workplace activity below some

17

threshold level of significance is not an issue of public interest, even though it implicates a public

18

policy.” Id. at 924. The court held that the supervisor’s conduct only affected the individuals he

19

supervised and did not affect a large number of people beyond the direct participants. Id. The court

20

held that this “[wa]s hardly a matter of public interest” and denied the union’s anti-SLAPP

21

motion. Id. at 924.

22

Similarly, in Olaes v. Nationwide Mutual Insurance Company, 135 Cal. App. 4th 1501 (2006),

23

a company accused an employee of sexually harassing other employees. Id. at 1504. The

24

employee sued, and the company filed an anti-SLAPP motion to strike. Id. The company argued

25

that eradicating sexual harassment in the workplace was a fundamental public interest. Id. at 1510.

26

The California Court of Appeal rejected this argument, holding that “although we agree the

27

elimination of sexual harassment implicates a public interest, . . . a dispute among a small number

28

of people in a workplace does not implicate a broader public interest subject to a motion to strike
ORDER – No. 18-cv-00373-LB

9

1

under section 425.16, subdivision (e).” Id. at 1511. The court held that the company’s accusations

2

against the employee of individual acts of sexual harassment did not bring their statements within

3

the ambit of the anti-SLAPP statute. Id. at 1510–11.

4

Similarly, in Trinidade v. Reach Media Group, LLC, No. 12-CV-4759-PSG, 2013 WL

5

3977034 (N.D. Cal. July 31, 2013), a former contractor made posts on Facebook that the CEO of a

6

company failed to pay him and owed him money, wired him money, and then pretended that the

7

wire was a fraudulent transfer in order to get it reversed. Id. at *3. The company sued for

8

defamation. Id. The contractor filed an anti-SLAPP motion to strike, arguing that he was warning

9

people about the company’s failure to pay and that the company’s other potential contractors
might be interested in his warnings, and hence the matter was one of public interest. Id. at *11.

11
United States District Court
Northern District of California

10

The court rejected that argument, noting that the contractor’s statements did not “affect large

12

numbers of people outside of [himself] and [the company]” and that the contractor’s statements to

13

a “relatively small, specific audience” — a Facebook group of 2244 members — failed to satisfy

14

his burden of showing that “his statements occurred ‘in the context of an ongoing controversy,

15

dispute or discussion, such that it warrants protection by a statute that embodies the public policy

16

of encouraging participation in matters of public significance.’” Id. at *10, 12–13 (quoting Du

17

Charme, 110 Cal. App. 4th at 119).

18

Courts have also rejected attempts to re-characterize statements about companies as statements

19

on a “public issue” or an “issue of public interest” for the purpose of the anti-SLAPP statute

20

simply because the companies might be large or powerful. The fact that subject of a defendant’s

21

statements might be “‘a large, powerful corporation’ does not render all information about the

22

company a matter of widespread public interest.” World Fin. Grp., 172 Cal. App. 4th at 1573.

23

Similarly, courts have rejected attempts to re-characterize statements about companies that may be

24

involved in a line of business that, broadly speaking, is of general public concern as statements on

25

a “public issue” or an “issue of public interest” where the statements themselves were not about a

26

matter of public interest. For example, in Consumer Justice Center v. Trimedica International,

27

Inc., 107 Cal. App. 4th 595 (2003), several plaintiffs sued a company that sold herbal breast-

28

enlargement supplements, claiming that the supplements did not work. Id. at 599. The company
ORDER – No. 18-cv-00373-LB

10

filed an anti-SLAPP motion, arguing that “herbal dietary supplements and other forms of

2

complementary medicine are the subject of public interest.” Id. at 601. The California Court of

3

Appeal rejected this argument, holding that regardless of whether herbal supplements generally

4

were a subject of public interest, the statements at issue were not about herbal supplements

5

generally — they were about the specific properties of the company’s product, which were not a

6

matter of general public interest. Id. at 601. The California Court of Appeal has held that

7

statements are not statements on a “public issue” or an “issue of public interest” for the purposes

8

of the anti-SLAPP statute when they are “not made in the context of any public discussion,” are

9

not “directed at encouraging others to participate in the discussion,” and do not “have any effect

10

on a substantial number of people beyond those to whom the information [i]s directly conveyed.”

11
United States District Court
Northern District of California

1

World Fin. Grp., 172 Cal. App. 4th at 1572–53.

12

1.3

13

Mr. Moore’s statements here fall in the category of non-public-issue statements that are not

14

protected by the anti-SLAPP statute. For example, his claims that Mr. Keller sexually harassed

15

him at most relate to a private workplace dispute that is not a matter of public interest. Cf. Olaes,

16

135 Cal. App. 4th at 1510–11 (private claim of sexual harassment is not a matter of public

17

interest). Similarly, his claims that Mr. Keller is a “greedy demonic scumbag” who supposedly left

18

his wife destitute and fleeced his business partner and are not matters of public interest. Cf. Rivero,

19

105 Cal. App. 4th at 924 (private claim of theft and bribe-taking is not a matter of public interest).

20

Additionally, Mr. Moore’s statements have no interest beyond potentially to business partners of

21

Mr. Keller and Steep Hill and do not encourage anyone to participate in an ongoing discussion of

22

a matter of public significance. Cf. Du Charme, 110 Cal. App. 4th at 119 (where the issue is of

23

interest to only a portion of the community, the statements must occur in the context of an ongoing

24

dispute or discussion, “such that it warrants protection by a statute that embodies the public policy

25

of encouraging participation in matters of public significance”) (emphasis in original); Trinidade,

26

2013 WL 3977034, at *13 (generally same).

Application

27
28
ORDER – No. 18-cv-00373-LB

11

Mr. Moore’s argument that Steep Hill and Mr. Keller work in the marijuana industry and that

1
2

there is an ongoing public debate about the legalization of marijuana31 does not make his

3

statements about them statements on matters of public interest. All of Mr. Moore’s statements are

4

attacks against Mr. Moore personally. None of his statements relates in any way to the broader

5

debate on marijuana legalization, and thus they do not warrant anti-SLAPP protection on that

6

basis. Cf. Consumer Justice, 107 Cal. App. 4th at 599 (that herbal supplements may be a matter of

7

public interest does not render all statements about a company that sells herbal supplements

8

statements on matters of public interest).
As Mr. Moore has failed to make a prima-facie showing as to the first step in the anti-SLAPP

9

test, the court need not address the second step.32 Mr. Moore’s anti-SLAPP motion to strike is

11
United States District Court
Northern District of California

10

denied.

12
13

2. Motion to Dismiss

14

2.1

15

A complaint must contain a “short and plain statement of the claim showing that the pleader is

Standard of Review

16

entitled to relief” to give the defendant “fair notice” of what the claims are and the grounds upon

17

which they rest. See Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

18

A complaint does not need detailed factual allegations, but “a plaintiff’s obligation to provide the

19

‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic

20

recitation of the elements of a cause of action will not do. Factual allegations must be enough to

21

raise a claim for relief above the speculative level . . . .” Id. (internal citations omitted).
To survive a motion to dismiss, a complaint must contain sufficient factual allegations, which

22
23

when accepted as true, “‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

24
31

25
26
27

See Def.’s Mot. to Strike – ECF No. 8 at 3–4, 7; Def.’s Mot. to Strike Reply – ECF No. 3–4.

Mr. Moore’s citation to Gallagher v. Connell, 123 Cal. App. 4th 1260 (2004) (cited by Def.’s Mot.
to Strike Reply – ECF No. 28 at 3) is inapposite. In Gallagher, the parties agreed that the first step of
the anti-SLAPP test was met, see id. at 1265, and the only issue the court addressed was the second
step, i.e., the merits of the plaintiff’s claims. Here, Mr. Moore fails to meet the first step of the antiSLAPP test, and hence he does not reach the second-step analysis that was the subject of Gallagher.
32

28
ORDER – No. 18-cv-00373-LB

12

1

556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility

2

when the plaintiff pleads factual content that allows the court to draw the reasonable inference that

3

the defendant is liable for the misconduct alleged.” Id. “The plausibility standard is not akin to a

4

‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted

5

unlawfully.” Id. (quoting Twombly, 550 U.S. at 557). “Where a complaint pleads facts that are

6

merely consistent with a defendant’s liability, it stops short of the line between possibility and

7

plausibility of ‘entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557) (internal quotation

8

marks omitted).

9

If a court dismisses a complaint, it must give leave to amend unless the “the pleading could not
possibly be cured by the allegation of other facts.” Cook, Perkiss & Liehe, Inc. v. N. Cal.

11
United States District Court
Northern District of California

10

Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990).

12
13
14
15

2.2

Defamation
2.2.1

Governing Law

The elements of a claim for libel and defamation under California law are (1) an intentional

16

publication, (2) that is false, (3) defamatory, and (4) unprivileged, and (5) that has a natural

17

tendency to injure or that causes special damage. Taus v. Loftus, 40 Cal. 4th 683, 720 (2007).

18

“Publication, which may be written or oral, is defined as a communication to some third person

19

who understands both the defamatory meaning of the statement and its application to the person to

20

whom reference is made.” Ringler Assocs. Inc. v. Md. Cas. Co., 80 Cal. App. 4th 1165, 1179

21

(2000) (citing Cunningham v. Simpson, 1 Cal. 3d 301, 306 (1969)). “If a defamatory meaning

22

appears from the language itself without the necessity of explanation or the pleading of extrinsic

23

facts, there is libel per se.” Palm Springs Tennis Club v. Rangel, 73 Cal. App. 4th 1, 5 (1999). If

24

“the defamatory meaning would appear only to readers who might be able to recognize it through

25

some knowledge of specific facts . . . not discernable from the face of the publication,” then the

26

libel is per quod. Id. at 6; see also Cal. Civ. Code § 45a (distinguishing between “libel on its face”

27

and “[d]efamatory language not libelous on its face”).

28
ORDER – No. 18-cv-00373-LB

13

1

Corporations may bring actions for defamation. Vegod Corp. v. ABC, Inc., 25 Cal. 3d 763, 770

2

(1979). And in certain circumstances, a corporation can bring an action for defamation for

3

statements made about a corporate officer. For example, in Trinidade v. Reach Media Group,

4

LLC, a contractor made Facebook posts stating that “Roger Dowd from Reach Media Group owes

5

me $13,000” and claiming that Mr. Dowd had failed to pay him. Trinidade, 2013 WL 3977034, at

6

*3. Mr. Dowd was the CEO of Reach Media. Id. at *2. Reach Media sued for defamation, and the

7

contractor argued that Reach Media could not bring a claim because his statements were only

8

about Mr. Dowd, not the company. Id. at *13. The court rejected that argument, noting that the

9

contractor mentioned Reach Media in his statements and that it reasonably could be inferred that
he had been referring to Reach Media as well as Mr. Dowd. Id. at *13–14; accord, e.g.,

11
United States District Court
Northern District of California

10

Powerlineman.com, LLC v. Kackson, No. CIV. S-07-879 LKK/EFB, 2007 WL 3479562, at *6

12

(E.D. Cal. Nov. 15, 2007) (company could bring defamation claim against defendant who

13

allegedly falsely stated that company’s website operator stole content, because “a reasonable

14

consumer might nevertheless construe that defendant’s statement was directed toward the

15

[company’s] website as much as it was directed toward its operator.”).

16

“California defamation law requires that the offending statement ‘expressly or impliedly assert

17

a fact that is susceptible to being proved false,’ and must be able reasonably to be ‘interpreted as

18

stating actual facts.’” Coastal Abstract Serv., Inc. v. First Am. Title Ins. Co., 173 F.3d 725, 730

19

(9th Cir. 1999) (citing Weller v. ABC, 232 Cal. App. 3d 991, 1001 (1991)). “Because defamation

20

requires a falsehood, it is sometimes said that an opinion, which is neither true nor false, is not

21

actionable. This is an oversimplification. Statements of opinion do not enjoy blanket protection.”

22

Dickinson v. Cosby, 17 Cal. App. 5th 655, 685 (2017) (citing Franklin v. Dynamic Details, Inc.,

23

116 Cal. App. 4th 375, 384 (2004)). “The issue is whether the statement of opinion implies a

24

statement of fact. ‘Statements of opinion that imply a false assertion of fact are actionable.’” Id.

25

(quoting Franklin, 116 Cal. App. 4th at 385). To determine “‘whether a reasonable fact finder

26

could conclude the published statement declares or implies a provably false assertion of fact’ . . . .

27

[courts] apply a totality of the circumstances test.” Id. at 686 (quoting Summit Bank v. Rogers, 206

28

Cal. App. 4th 669, 696 (2012)). “First, [courts] examine the language of the statement itself, to
ORDER – No. 18-cv-00373-LB

14

1

determine whether the words are understood in a defamatory sense. Second, [courts] examine the

2

context in which the statement was made.” Id. (citing Franklin, 116 Cal. App. 4th at 385).
A plaintiff who is a “public figure” must meet an additional element to prevail on a defamation

3
4

claim: he or she must establish that the defendant acted with actual malice. Grenier v. Taylor, 234

5

Cal. App. 4th 471, 483–84 (2015) (citing Reader’s Digest Ass’n v. Super. Ct., 37 Cal. 3d 244,

6

252–53 (1984)). “There are two classes of public figures. The first is the ‘all purpose’ public

7

figure who has achieved such pervasive fame or notoriety that he becomes a public figure for all

8

purposes and in all contexts. The second category is that of the ‘limited purpose’ or ‘vortex’ public

9

figure, an individual who voluntarily injects himself or is drawn into a particular public
controversy and thereby becomes a public figure for a limited range of issues.” Id. at 484 (internal

11
United States District Court
Northern District of California

10

quotation marks and brackets omitted) (quoting Reader’s Digest, 37 Cal. 3d at 253).

12

“Characterizing a plaintiff as a limited purpose public figure requires the presence of certain

13

elements.” Id. (citing Ampex Corp. v. Cargle, 128 Cal. App. 4th 1569, 1577 (2005)). “First, there

14

must be a public controversy about a topic that concerns a substantial number of people. In other

15

words, the issue was publicly debated..” Id. (citing Gilbert v. Sykes, 147 Cal. App. 4th 13, 25

16

(2007)). “Second, the plaintiff must have voluntarily acted to influence resolution of the issue of

17

public interest. To satisfy this element, the plaintiff need only attempt to thrust himself or herself

18

into the public eye.” Id. (citing Ampex, 128 Cal. App. 4th at 1577). “Once the plaintiff places

19

himself or herself in the spotlight on a topic of public interest, his or her private words and acts

20

relating to that topic become fair game.” Id. (citing Gilbert, 147 Cal. App. 4th at 25). “However,

21

the alleged defamation must be germane to the plaintiff’s participation in the public controversy.”

22

Id. (citing Ampex, 234 Cal. App. 4th at 1577).

23

2.2.2

The only argument Mr. Moore makes in his motion to dismiss against Steep Hill’s defamation

24
25

Application

claim is that his statements were directed at Mr. Keller, not Steep Hill.33 But given that his

26
27

33

Def.’s Mot. to Dismiss – ECF No. 9 at 3–4.

28
ORDER – No. 18-cv-00373-LB

15

1

allegedly defamatory fliers specifically linked Mr. Keller and Steep Hill — they state, “DO NOT

2

TRUST STEEP HILL LABS NEW OWNER AND CEO J. MICHAEL KELLER” — Steep Hill

3

may bring a defamation claim against Mr. Moore as well. Cf. Trinidade, 2013 WL 3977034, at

4

*13–14; Powerlineman.com, 2007 WL 3479562, at *6.
Mr. Moore makes several additional arguments against the plaintiffs’ defamation claims in his

5
6

motion to strike.34 First, Mr. Moore argues that his statements are non-actionable opinions.35 The

7

court disagrees. Mr. Moore’s accusations that Mr. Keller is, among other things, a “proven sexual

8

harasser” and a “homosexual predator” who tried to have a three-way sexual encounter during an

9

interview session and fired Mr. Moore for refusing to have sex with him, that Mr. Keller “left wife
destitutute [sic] w PTSD,” and that Mr. Keller and “fleeced” and “robbed” his business partner

11
United States District Court
Northern District of California

10

and his wife, are statements that a reasonable factfinder could conclude declare or imply provably

12

false assertion of facts. Mr. Moore’s other statements (e.g., that Mr. Keller is “greedy demonic

13

scumbag”) are actionable as well. Read in the context in which they appeared, those conclusions

14

are either based on the factual accusations they accompanied — in which case, if those factual

15

statements are actionable, so are the conclusions, see Dickinson, 116 Cal. App. 4th at 688 (“An

16

opinion based on a provably false fact is itself actionable.”) — or they are implicitly based on

17

other, undisclosed facts, in which case they are actionable as well, see id. (defamatory opinion

18

may be actionable when “it does not disclose all of the facts on which the opinion is based”).

19

Second, Mr. Moore argues that Steep Hill and Mr. Keller are limited public figures because

20

Mr. Keller is “a public figure within the community of the marijuana trafficking industry,” and

21

hence Steep Hill and Mr. Keller must plead that he acted with actual malice.36 But even assuming

22

that the plaintiffs are limited public figures with respect to the marijuana industry, that does not

23
24

34

25

35

26

36

27

While Mr. Moore technically did not raise these arguments properly in the context of a motion to
dismiss, because he is pro se, the court interprets his filings liberally.
Def.’s Mot. to Strike – ECF No. 8 at 4, 7.

Def.’s Mot. to Strike – ECF No. 8 at 4, 7–8. Mr. Moore makes no plausible argument that Steep Hill
or Mr. Keller have “achieved such pervasive fame or notoriety that [they] become[] public figure[s] for
all purposes and in all contexts,” Grenier, 234 Cal. App. 4th at 484, and hence this opinion focuses
only on the issue of whether they are “limited-purpose” public figures.

28
ORDER – No. 18-cv-00373-LB

16

1

make them public figures with respect to all issues and all topics. Mr. Moore’s statements about

2

Mr. Keller do not relate to the marijuana industry or the plaintiffs’ participation therein. His

3

statements attack Mr. Keller on separate issues (sexual harassment and theft). Consequently, in the

4

context of this case, Mr. Moore’s argument that the plaintiffs are public figures and therefore must

5

plead actual malice fails. Cf. Grenier, 234 Cal. App. 4th at 485 (fact that pastor “thrust himself

6

into the public eye as an expert on the Bible and its teachings” by writing book, hosting radio

7

program, and promoting himself on web site, does not make him a public figure in connection

8

with statements accusing him of child abuse, tax evasion, or theft).
Third, Mr. Moore argues that the statements on his website were originally published in 2015,

9

and the fliers he distributed in 2017 were re-publications of his website and therefore relate back

11
United States District Court
Northern District of California

10

to 2015, and hence his statements are outside the statute of limitations for defamation.37 Mr.

12

Moore’s statute-of-limitations argument relies on matters outside the pleadings, however, and

13

therefore is not appropriate for consideration on a motion to dismiss. See, e.g., 24/7 Customer, Inc.

14

v. 24-7 Intouch, No. 5:14-cv-02561-EJD, 2015 WL 1522236, at *4 (N.D. Cal. Mar. 31, 2015)

15

(“Plaintiff’s complaint could only be properly dismissed [under a statute of limitations defense] if

16

the complaint itself contained factual allegations demonstrating that Plaintiff definitively filed suit

17

outside of the limitation period”).
For the foregoing reasons, the court denies Mr. Moore’s motion to dismiss Steep Hill’s claim

18
19

for defamation.

20
21

2.3

22

Intentional Interference with Prospective Economic Advantage
2.3.1

Governing Law

To plead intentional inference with prospective economic advantage, a plaintiff must allege

23
24

“(1) an economic relationship between the plaintiff and some third party, with the probability of

25

future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship;

26
27

37

Def.’s Mot. to Strike – ECF No. 8 at 8; Def.’s Mot. to Strike Reply – ECF No. 28 at 6–7.

28
ORDER – No. 18-cv-00373-LB

17

(3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual

2

disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the

3

acts of the defendant.” Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134, 1153 (2003)

4

(quoting Westside Ctr. Assocs. v. Safeway Stores 23, Inc., 42 Cal. App. 4th 507, 521–22 (1996)).

5

“The law precludes recovery for overly speculative expectancies by initially requiring proof the

6

business relationship contained the probability of future economic benefit to the plaintiff.”

7

Westside Ctr., 42 Cal. App. 4th at 522 (emphasis in original, citations omitted). “[T]he

8

interference tort applies to interference with existing noncontractual relations which hold the

9

promise of future economic advantage. In other words, it protects the expectation that the

10

relationship eventually will yield the desired benefit, not necessarily the more speculative

11
United States District Court
Northern District of California

1

expectation that a potentially beneficial relationship will eventually arise.” Id. at 524 (emphasis in

12

original).

13

2.3.2

Application

14

The plaintiffs have not pleaded any actual disruption of economic relationships with third

15

parties and therefore have failed to plead the elements of this claim. The plaintiffs allege that four

16

of their investors requested teleconferences with Mr. Keller asking for an explanation of Mr.

17

Moore’s statements, but they do not allege that there was any disruption in their relationship with

18

any of these investors. Additionally, the plaintiffs allege that Mr. Moore’s statements caused them

19

to lose business and potential investor opportunities, but these allegations are “speculative

20

expectation[s] that a potentially beneficial relationship will eventually arise” and not allegations of

21

interference with “existing noncontractual relations which hold the promise of future economic

22

advantage.” Cf. Westside Ctr., 42 Cal. App. 4th at 522, 524 (emphasis in original). Consequently,

23

the court grants Mr. Moore’s motion to dismiss Steep Hill’s claim for intentional interference with

24

prospective economic advantage.38

25
26
27

As Mr. Moore technically did not move to dismiss Mr. Keller’s claim for intentional interference
with prospective economic advantage, only Steep Hill’s, see Def.’s Mot. to Dismiss – ECF No. 9 at 1,
the court does not dismiss that claim, but it notes that Mr. Keller’s claim appears to suffer from the
same deficiencies as Steep Hill’s.
38

28
ORDER – No. 18-cv-00373-LB

18

1

2.4

2

Intentional Interference with Contractual Relations
2.4.1

Governing Law

3

To plead intentional interference with contractual relations, a plaintiff must allege “(1) the

4

existence of a valid contract between the plaintiff and a third party; (2) the defendant’s knowledge

5

of that contract; (3) the defendant’s intentional acts designed to induce a breach or disruption of

6

the contractual relationship; (4) actual breach or disruption of the contractual relationship; and

7

(5) resulting damage.” Reeves v. Hanlon, 33 Cal. 4th 1140, 1148 (2004) (citing Pac. Gas & Elec.

8

Co. v. Bear Stearns & Co., 50 Cal. 3d 1118, 1126 (1990)).

9
10

2.4.2

Application

The plaintiffs’ allegations here suffer from similar deficiencies as their claims for intentional

United States District Court
Northern District of California

11

interference with prospective economic advantage: they do not allege an actual breach or

12

disruption of any contractual relationship. The court therefore grants Mr. Moore’s motion to

13

dismiss these claims.

14
15
16
17
18
19

2.5

Stalking
2.5.1

Governing Law

California Civil Code § 1708.7 states, in relevant part:
(a) A person is liable for the tort of stalking when the plaintiff proves all of the
following elements of the tort:

21

(1) The defendant engaged in a pattern of conduct the intent of which was to
follow, alarm, place under surveillance, or harass the plaintiff. In order to establish
this element, the plaintiff shall be required to support his or her allegations with
independent corroborating evidence.

22

....

23

(3) One of the following:

24

(A) The defendant, as a part of the pattern of conduct specified in paragraph (1),
made a credible threat . . . .

20

25
26

....

27
28
ORDER – No. 18-cv-00373-LB

19

1

(b) For the purposes of this section:

2

....

3

7

(2) “Credible threat” means a verbal or written threat, including that communicated
by means of an electronic communication device, or a threat implied by a pattern of
conduct, including, but not limited to, acts in which a defendant directly, indirectly,
or through third parties, by any action, method, device, or means, follows, harasses,
monitors, surveils, threatens, or interferes with or damages the plaintiff’s property,
or a combination of verbal, written, or electronically communicated statements and
conduct, made with the intent and 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 safety of his or her immediate family.

8

“[Courts] ordinarily presume the Legislature did not intend the statutes of this state to have

9

force or operation beyond the boundaries of the state.” Norwest Mortg., Inc. v. Super. Ct., 72 Cal.

4
5
6

App. 4th 214, 222 (1999) (citing cases). “Accordingly, [courts] do not construe a statute as

11
United States District Court
Northern District of California

10

regulating occurrences outside the state unless a contrary intention is clearly expressed or

12

reasonably can be inferred from the language or purpose of the statute.” Id. (citing Diamond

13

Multimedia Sys., Inc. v. Super. Ct., 19 Cal. 4th 1036, 1058–59 (1999)).

14

2.5.2

Application

Mr. Moore argues, and Mr. Keller does not meaningfully rebut,39 that Mr. Moore’s alleged

15
16

assault of Mr. Keller in Nevada cannot constitute civil stalking under California Civil Code

17

§ 1708.7, as it occurred outside California and hence outside the reach of the California Civil

18

Code. Setting aside the assault in Nevada, Mr. Keller does not plead that Mr. Moore made a

19

credible threat against him, as required by Section 1708.7(a)(3)(A) — Mr. Keller alleges that Mr.

20

Moore’s statements against him are “false and unfounded [and] outrageous,” but he does not

21

allege that they were threats.40 The court therefore grants Mr. Moore’s motion to dismiss this

22

claim.

23
24
25
26
39

27

See Pls.’ Mot. to Dismiss Opp’n – ECF No. 21 at 12.

40

See Compl. – ECF No. 12 (¶¶ 44–47).

28
ORDER – No. 18-cv-00373-LB

20

2.6

1
2

Breach of Contract
2.6.1

Governing Law

3

Mr. Moore argues that Mr. Keller cannot bring a breach of contract claim for breach of the

4

Agreement because Mr. Keller is not a party to the Agreement.41 Mr. Keller argues that he can

5

sustain a claim because he is a third-party beneficiary to the Agreement.42 The Agreement states

6

that it “shall be construed and enforced under Nevada law.”43 The court therefore looks to Nevada

7

law on contractual third-party beneficiaries.
Under Nevada law, “[t]o obtain status as a third party beneficiary, ‘there must clearly appear a

8

promissory intent to benefit the third party, and ultimately it must be shown that the third party’s

10

reliance thereon is foreseeable.’” WuMAC, Inc. v. Eagle Canyon Leasing, Inc., No. 2:12-cv-0926-

11
United States District Court
Northern District of California

9

LRH-VCF, 2015 WL 995095, at *7 (D. Nev. Mar. 5, 2015) (quoting Lipshie v. Tracy Inv. Co., 566

12

P.2d 819, 824–25 (Nev. 1977)). “In order for an entity to be a third party beneficiary, the

13

underlying agreement must be made for that entity’s benefit.” Id. (citing Olsen v. Iacometti, 533

14

P.2d 1360, 1363 (Nev. 1975)). “The fact that he might incidentally benefit by the performance of

15

the agreement is insufficient.” Id. (citing Olsen, 533 P.2d at 1363). “Whether an individual is an

16

intended third-party beneficiary turns on the parties’ intent, ‘gleaned from reading the contract as a

17

whole in light of circumstances under which it is entered.’” Id. (quoting Wright v. Incline Village

18

Gen. Improvement Dist., 597 F. Supp. 2d 1191, 1205 (D. Nev. 2009)).

19

2.6.2

Application

Reading the Agreement as a whole in light of the circumstances under which it was entered —

20
21

namely, to resolve and settle a litigation between Mr. Moore and MeetingMatrix to which Mr.

22

Keller was not a party44 — it does not clearly appear that the parties intended to benefit Mr. Keller

23

or that Mr. Keller’s reliance on any such benefit would be foreseeable. It does not appear that the

24
25

41

Def.’s Mot. to Dismiss – ECF No. 9 at 5; Def.’s Mot. to Dismiss Reply – ECF No. 27 at 3.

26

42

Pls.’ Mot. to Dismiss Opp’n – ECF No. 21 at 12.

43

Compl. Ex. A (Agreement) – ECF No 38-1 at 8 (¶ 5.I)

44

See Compl. Ex. A (Notice of Dismissal) – ECF No. 38-1 at 3.

27
28

ORDER – No. 18-cv-00373-LB

21

1

Agreement was made for the benefit of MeetingMatrix’s employees, as opposed to for the benefit

2

of MeetingMatrix (and its employees only as incidental to MeetingMatrix itself). Cf. WuMAC,

3

2015 WL 995095, at *7 (“In order for an entity to be a third party beneficiary, the underlying

4

agreement must be made for that entity’s benefit.”). Among other things, the Agreement states that

5

if Mr. Moore breaches, MeetingMatrix shall be entitled to $16,000 in liquidated damages, but it

6

makes no provision for MeetingMatrix employees.45 Mr. Keller is nevertheless invoking that

7

provision and claiming that Mr. Moore owes him at least $16,000 in liquidated damages.46 Under

8

Mr. Keller’s interpretation of the Agreement, any and every MeetingMatrix employee who alleges

9

that Mr. Moore breached the Agreement to his or her detriment could likewise sue Mr. Moore for
$16,000 in liquidated damages. It does not clearly appear that MeetingMatrix and Mr. Moore

11
United States District Court
Northern District of California

10

intended to benefit MeetingMatrix employees in this way.

12

Absent a clear intent that the Agreement was intended to benefit Mr. Keller and that his

13

reliance on any such benefit would be foreseeable, Mr. Keller is, at best, only an incidental

14

beneficiary of the Agreement and cannot sue to enforce it. The court therefore grants Mr. Moore’s

15

motion to dismiss this claim.

16
17

3. Preliminary Injunction

18

3.1

19

“A plaintiff seeking a preliminary injunction must establish [(1)] that he is likely to succeed on

Standard of Review

20

the merits, [(2)] that he is likely to suffer irreparable harm in the absence of preliminary relief,

21

[(3)] that the balance of equities tips in his favor, and [(4)] that an injunction is in the public

22

interest.” Winter v. Nat’l Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (citations omitted).

23

Additionally, where the plaintiff has satisfied the second, third, and fourth factors, the first factor

24

is also satisfied if the plaintiff has raised “at least serious questions on the merits.” Alliance for the

25

Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). A preliminary injunction is “an

26
45

27

Compl. Ex. A (Agreement) – ECF No 38-1 at 7 (¶ 5.D).

46

Compl. – ECF No. 1 at 13–14 ([second] ¶¶ 5, 10)

28
ORDER – No. 18-cv-00373-LB

22

1

extraordinary remedy that may be awarded only upon a clear showing that plaintiff is entitled to

2

such relief.” Winter, 555 U.S. at 22.
Additionally, a motion for a preliminary injunction that restricts a defendant’s speech — a

4

“prior restraint” — is subject to heightened scrutiny. “The term prior restraint is used to describe

5

administrative and judicial orders forbidding certain communications when issued in advance of

6

the time that such communications are to occur.” Alexander v. United States, 509 U.S. 544, 550

7

(1993) (emphasis, citation, and quotation marks omitted). “Temporary restraining orders and

8

permanent injunctions — i.e., court orders that actually forbid speech activities — are classic

9

examples of prior restraints.” Id. (citation omitted). “[P]rior restraints on speech and publication

10

are the most serious and the least tolerable infringement on First Amendment rights.” Neb. Press

11
United States District Court
Northern District of California

3

Ass’n v. Stuart, 427 U.S. 539, 559 (1976). “There is a heavy presumption against prior restraints

12

on speech, and they are subject to the strict scrutiny standard of review.” Dan Farr Prods. v. U.S.

13

Dist. Ct. (In re Dan Farr Prods.), 874 F.3d 590, 593 n.2 (9th Cir. 2017). A prior restraint “may be

14

upheld only if . . . (1) the activity restrained poses either a clear and present danger or a serious

15

and imminent threat to a protected competing interest, (2) the [injunction] is narrowly drawn, and

16

(3) less restrictive alternatives are not available.” Levine v. U.S. Dist. Ct., 764 F.2d 590, 595 (9th

17

Cir. 1985) (citations omitted).

18
19

3.2

20

In their motion for a preliminary injunction, the plaintiffs first request that the court order Mr.

Application

21

Moore to take down his website and refrain from distributing any type of defamatory

22

communication about them.47 These are classic prior restraints that seek to limit Mr. Moore’s

23

speech, and the plaintiffs have not met the strict-scrutiny standard necessary for a prior restraint.

24

The fact that the plaintiffs have limited at least part of their request that the court enjoin Mr.

25

Moore to “defamatory” statements does not help them: “[w]here there has been no trial and no

26
27

47

Pls.’ Mot. for Prelim. Injunction – ECF No. 31-2 at 3.

28
ORDER – No. 18-cv-00373-LB

23

1

determination on the merits that there is actionable defamation, . . . the court cannot prohibit a

2

party from making statements characterized only as ‘false and defamatory.’” Elec. Frontier

3

Found. v. Global Equity Mgmt. (SA) Pty. Ltd., __ F. Supp. 3d __, No. 17-cv-02053-JST, 2017 WL

4

5525835, at *12 n.10 (N.D. Cal. Nov. 17, 2017) (internal quotation marks omitted) (quoting Evans

5

v. Evans, 162 Cal. App. 4th 1157, 1169 (2008)).48

6

The plaintiffs then request that the court order Mr. Moore not to go within one hundred feet of

7

Mr. Keller or Steep Hill’s business.49 But the plaintiffs have not met the standard for a preliminary

8

injunction with respect to this request. Among other things, the plaintiffs have not established that

9

they are likely to suffer irreparable harm. “[S]peculative injury does not constitute irreparable
injury sufficient to warrant granting a preliminary injunction. A plaintiff must do more than

11
United States District Court
Northern District of California

10

merely allege imminent harm sufficient to establish standing; a plaintiff must demonstrate

12

immediate threatened injury as a prerequisite to preliminary injunctive relief.” Boardman v. Pac.

13

Seafood Grp., 822 F.3d 1011, 1022 (9th Cir. 2016) (emphasis in original) (quoting Caribbean

14

Marine Serv. Co., Inc. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988)). The plaintiffs have failed to

15

demonstrate how they would suffer non-speculative irreparable harm in the absence of an order

16

enjoining Mr. Moore from going within one hundred feet of Mr. Keller or Steep Hill’s business

17

(particularly given that Mr. Moore is located in a different state or country than either of the

18

plaintiffs).

19
20
21
22
23
24
25
26
27

48

The plaintiffs cite two cases in which courts issued prior restraints, but both are inapposite.
Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc., 129 Cal. App. 4th 1228
(2005) involved disclosures of an individual’s home address accompanied by what the court found
were “true threats” of violence. See id. at 1249–57. Evilsizor v. Sweeney, 237 Cal. App. 4th 1416
(2015) was a divorce case in which a husband had downloaded his wife’s private text messages
(including text messages to her attorney) without her consent and had rerouted her emails to his
account and threatened to publicly disclose her texts and emails for leverage in the divorce
proceedings. Id. at 1421. Nothing similar is alleged here.
49

Pls.’ Mot. for Prelim. Injunction – ECF No. 31-2 at 3.

28
ORDER – No. 18-cv-00373-LB

24

CONCLUSION

1
2

The court denies Mr. Moore’s anti-SLAPP motion to strike.

3

The court grants Mr. Moore’s motion to dismiss (1) Steep Hill’s claim for intentional

4

interference with prospective economic relations, (2) both plaintiffs’ claims for intentional

5

interference with contractual relations, (3) Mr. Keller’s claim for civil stalking, and (4) Mr.

6

Keller’s claim for breach of contract. These dismissals are without prejudice, and the plaintiffs

7

may file an amended complaint within fourteen days of the date of this order. (If the plaintiffs file

8

an amended complaint, they must also file a blackline of their amended complaint against their

9

original complaint as an attachment.) The court denies Mr. Moore’s motion to dismiss Steep Hill’s

10

United States District Court
Northern District of California

11

claim for defamation.
The court denies the plaintiffs’ motion for a preliminary injunction.

12
13

IT IS SO ORDERED.

14

Dated: March 8, 2018
______________________________________
LAUREL BEELER
United States Magistrate Judge

15
16
17
18
19
20
21
22
23
24
25
26
27
28
ORDER – No. 18-cv-00373-LB

25