Enjaian v. ALM Media Properties, LLC et al

Filing 27

ORDER by Judge Hamilton granting 18 Motion to Strike (pjhlc2, COURT STAFF) (Filed on 12/23/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JESSE R. ENJAIAN,
Plaintiff,

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v.

ORDER GRANTING MOTION TO
STRIKE

ALM MEDIA PROPERTIES, LLC, et al.,

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For the Northern District of California

United States District Court

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No. C 14-3872 PJH

Defendants.
_______________________________/

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Defendants’ motion to strike came on for hearing before this court on December 3,

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2014. Plaintiff Jesse Enjaian (“plaintiff”) appeared in pro per. Defendants ALM Media

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Properties, LLC, Beth Frerking, and Karen Sloan (“defendants”) appeared through their

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counsel, Deborah Adler. Having read the papers filed in conjunction with the motion and

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carefully considered the arguments and the relevant legal authority, and good cause

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appearing, the court hereby GRANTS defendants’ motion as follows.

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Plaintiff’s suit arises entirely out of a news article published by the National Law

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Journal entitled “Law School Alum, Accused of Stalking, Loses Suit Against U. Michigan,”

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and a Twitter message, published by the article’s author, linking to the story with the text

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“Judge tosses lawsuit brought by Michigan Law alum accused of stalking former

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classmate.” Based on that news story and that message, plaintiff filed this suit against

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defendants ALM Media Properties (publisher of the National Law Journal), Beth Frerking

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(editor-in-chief of the National Law Journal), and Karen Sloan (reporter for the National Law

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Journal), asserting one cause of action for defamation. The gravamen of plaintiff’s suit is

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that, by using the word “accused,” defendants falsely stated that plaintiff had been formally

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charged with the crime of stalking. Defendants have moved to strike the operative first

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amended complaint (“FAC”) under California’s anti-SLAPP statute.
The anti-SLAPP statute prohibits the filing of legal actions based on the defendant’s

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lawful pursuit of a right to petition, or a right to free speech, where such speech or

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petitioning activity is in connection with a public issue. It may be applied in federal court in

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diversity actions and to actions with pendent state law claims. Globetrotter Software, Inc.

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v. Elan Computer Group, Inc., 63 F.Supp. 2d 1127, 1130 (N.D. Cal. 1999).

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The anti-SLAPP statute authorizes a special motion to strike certain pleadings in a

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cause of action based on any act of the defendant in furtherance of his or her right of

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petition or free speech, under the federal or state constitutions, in connection with a public
issue, as defined by the statute. Cal. Code. Civ. P. § 425.16. Once the defendant has

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For the Northern District of California

United States District Court

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made out a prima facie case, the burden shifts to the plaintiff to demonstrate a probability

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of prevailing on the challenged claims for those claims to survive dismissal. Id. §

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425.16(b). To meet this burden, the plaintiff must demonstrate that the complaint is legally

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sufficient and supported by a prima facie showing of facts to sustain a favorable judgment if

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the evidence submitted by the plaintiff is credited. Wilcox v. Superior Court, 27 Cal. App.

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4th 809, 823-25 (1994).

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The anti-SLAPP statute authorizes a motion to strike meritless lawsuits filed to chill

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the defendant's exercise of First Amendment rights. Subdivision (b)(1) of the statute

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provides:

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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 or California Constitution in connection with a public issue shall be
subject to a special motion to strike, unless the court determines that the
plaintiff has established that there is a probability that the plaintiff will prevail
on the claim.

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Cal. Civ. P. Code § 425.16(b)(1).
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The statute requires the court to engage in a two-step process in ruling on an anti-

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SLAPP motion. “First, the court decides whether the defendant has made a threshold

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showing that the challenged cause of action is one arising from protected activity.. . . If the

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court finds such a showing has been made, it then determines whether the plaintiff has
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demonstrated a probability of prevailing on the claim.” Equilon Enterprises v. Consumer

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Cause, Inc., 29 Cal. 4th 53, 67 (2000); see also Vess v. Ciba-Geigy Corp. USA, 317 F.3d

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1097, 1110 (9th Cir. 2003).

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Plaintiff does not dispute that the first prong of the anti-SLAPP analysis is met, and

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that his suit does arise out of protected activity. However, he does argue that he has

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demonstrated a probability of prevailing on his defamation claim.

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Defamation requires the intentional publication of a statement of fact which is false,

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unprivileged, and has a natural tendency to injure or which causes special damage. See

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Price v. Stossel, 620 F.3d 992, 998 (9th Cir. 2010; see also Taus v. Loftus, 40 Cal. 4th 683,

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For the Northern District of California

United States District Court

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720 (2007)).
Plaintiff alleges that defendants’ use of the term “accused” was false, because he

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was never formally charged with a crime. The court disagrees that the word “accused”

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carries the connotation of a formal criminal charge. Webster’s dictionary definition (cited by

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plaintiff in the FAC) defines “accuse” as “to blame (someone) for something wrong or

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illegal” or “to say that someone is guilty of a fault or crime.” While the term “accuse” may

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also be used in the context of a formal indictment, the court disagrees that a reasonable

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reader would interpret “accuse” to mean “formally charge.” See also Conroy v. Spitzer, 70

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Cal.App.4th 1446, 1453 (1999) (rejecting argument that the word “guilty” implied criminal

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guilt). In fact, the court notes that plaintiff’s own complaint uses the term “accusation” to

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refer to something less than a criminal charge. See FAC, ¶ 20 (prayer for relief asking that

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defendants be required to publish an apology “for the wrongful accusation and publish a

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‘tweet’ apologizing for the wrongful accusation.”) (emphasis added).

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While plaintiff’s complaint alleges that the term “accused” was the only false

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statement in the article, plaintiff argued at the hearing that the phrase “[h]e claimed officers

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kept the items for 446 days but never charged him with a crime” was false, because it

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implies that there is a dispute as to whether plaintiff was ever charged with a crime. The

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court disagrees, as the challenged statement merely reports the substance of plaintiff’s own

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claim, and does not state or imply anything about its truth or falsity.
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Thus, even if the court were to assume that defendants’ statements were

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unprivileged, plaintiff has not demonstrated a probability of prevailing on his claim that

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defendants’ statements were false, and therefore constituted defamation. For that reason,

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defendants’ motion to strike is GRANTED.

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California Civil Code § 47(d), which provides as follows:
A privileged publication or broadcast is one made . . . [b]y a fair and true
report in, or a communication to, a public journal, of (A) a judicial, (B)
legislative, or (C) other public official proceeding, or (D) of anything said in the
course thereof, or (E) of a verified charge or complaint made by any person to
a public official, upon which complaint a warrant has been issued.
Plaintiff contends that the article and Twitter message are not “fair and true,” and

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For the Northern District of California

United States District Court

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Defendants raise a separate argument that the challenged article is privileged under

thus not entitled to the privilege. In addition to arguing that the term “accused” and the

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phrase “he claimed officers . . . never charged him with a crime” are false, plaintiff also

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argues that numerous other statements in the article were taken out of context or otherwise

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misrepresented his suit, which makes them not “fair.”

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The court finds that defendants’ publications were sufficiently “fair and true” to

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qualify as privileged. The court notes that a “news article need not track verbatim the

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underlying proceeding,” and that the privilege applies unless “the deviation is of such a

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substantial character that it produces a different effect on the reader.” Carver v. Bonds,

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135 Cal.App.4th 328, 351 (2005). In other words, the article needed only “convey the

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substance of the proceedings.” Id. at 351-52.

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Accordingly, while the court finds that plaintiff has failed to demonstrate a probability

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of prevailing on his defamation claim even without any consideration of the section 47(d)

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privilege, the court finds that application of the privilege provides an independent basis for

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granting defendants’ motion.

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IT IS SO ORDERED.

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Dated: December 23, 2014
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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