If defendants meet their Prong One burden of proving their statements arose from protected conduct, their anti-SLAPP motion is not won. The onus then shifts to the plaintiffs with the obligation to establish a probability of success on the merits.[1]
The probability-of-prevailing standard closely mirrors the standard on a motion for summary judgment.[2] But in anti-SLAPP analysis, the court does not weigh the evidence—it views it in the light most favorable to the plaintiff.[3]
The elements of a libel per se cause of action
A California defamation claim may be asserted as a claim for slander (oral) or libel (written). Either “involves (a) a publication that is (b) false, (c) not actionable if it discloses all the statements of fact on which the opinion is based and those statements are true.”; [4] the statement must be (d) defamatory, (e) unprivileged, and (f) ha[ve] a natural tendency to injure or that causes special damage. [5]
Our office recently defended an anti-SLAPP motion involving a lengthy Facebook post. After the defendants prevailed on Prong One (by showing their post arose from the right of free speech), they maintained the plaintiffs had no probability-of-prevailing on Prong Two, i.e., on the merits on their cause of action for libel per se. Defendants posited their post merely expressed legally protected opinion.
The defendants submitted their statement was only opinion — not a provably false assertion of fact. They isolated several related statements and claims, postulating they were merely defendants’ beliefs and impressions about the accusation of criminal conduct in the plaintiff’s complaint. However, the court found the defendants’ motion glossed over the factual events they described in the posting, including direct quotes the plaintiffs supposedly made, on which they based those opinions, beliefs, and impressions.
The second prong of a court’s anti-SLAPP analysis starts with the statement alleged to have constituted the libel per se. For example, one defendant asserted she was yelling “stop,” claiming the defendants then raped her.
Courts must consider the totality of the circumstances, including the general tenor of the entire writing, subject of the statement, setting, and format of work.[6] (For evaluation of the importance of context in anti-SLAPP motions, see the California Supreme Court’s decision in FilmOn.Com Inc., v. DoubleVerify Inc., (2019)) [7] “Thus, a false statement of fact, whether expressly stated or implied from an expression of opinion, is actionable.”[8] “[A]n opinion based on implied, undisclosed facts is actionable if the speaker has no factual basis for the opinion” but “[a]n opinion is not actionable if it discloses all the statements of fact on which the opinion is based and those statements are true.”[9]
Bently Reserve analyzed the law relating to defamation over the Internet. The court explained that use of hyperbolic, informal, crude, or ungrammatical language, satirical tone, or vituperative, juvenile name-calling provide support for the conclusion that offensive comments were nonactionable opinion.[10]
The judges noted that overly vague statements and generalized comments lacking any specificity as to the time or place of alleged conduct may be a further signal to the reader there is no factual basis for the accusations. Id. at 431. However, if a statement is “factually specific,” “earnest” or “serious” in tone, or the speaker “represents himself as hav[ing] personally witnessed … abhorrent behavior,” this may signal the opposite, rendering the statement actionable. Ibid.
The defendants ventured their statement was made on a Facebook page that was informal, a place where a reader should expect opinions not facts. Although courts have recognized that online posters often “play fast and loose with facts” this should not be taken to mean that online commentators are immune from defamation liability.[11]
In the anti-SLAPP motion, the totality of the circumstances surrounding the posting and the context in which it was written demonstrated this was not a casual rant or rave of the defendants’ opinions. They did not use hyperbolic, informal, crude, or ungrammatical language. Their post showed no satirical tone nor engaged in juvenile name-calling. The defendants presented the information as an alert to others so it might help them if they are ever in a similar situation. Their tone and their content were serious, as they averred in the posting and in their special motion to strike.
The defendants in their anti-SLAPP motion did not make overly vague statements and generalized comments lacking any specificity as to the time or place of alleged conduct. The court ruled their posting was based on specific allegations of conduct, describing events and scenarios they claimed actually happened to one of them. They also offered an explicit chronology of the relationship that repeatedly quoted and paraphrased actual words the plaintiffs purportedly said to them.
Defendants argued elsewhere in their motion that the disputed post provided a detailed account of a woman’s interactions with the plaintiffs. The court determined the defendants’ Facebook post was not an unspecified rant or rave about an online topic.
The defendants also did not seek to prove their Facebook statement recited facts; they argued the offending post consisted only of matters of opinion. They did, however, file a reply brief in which they submitted evidence for the first time of falsity of the plaintiffs’ facts.
That the anti-SLAPP statute sets forth a two-step, burden-shifting analysis
does not mean the moving papers need discuss only the moving party’s burden. For example, even in an anti-SLAPP motion, the defendant generally must prove its affirmative defenses.[12] “[A]lthough section 425.16 places on the plaintiff the burden of substantiating its claims, a defendant that advances an affirmative defense to such claims [e.g., truth or falsity] properly bears the burden of proof on the defense.” [13]
Plaintiffs asserted that to hold otherwise would be an affront to due process. It would allow anti-SLAPP defendants to sandbag their opponents with new arguments on reply. It’s Hornbook law that “[p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.”[14]
But, had the court considered the tardy evidence, such disputed evidence could not defeat plaintiffs’ claims of falsity as a matter of law. The plaintiffs contended the factual events described in the defendants’ Facebook posting did not occur, and that their statements were patently false. Yet the court does not weigh the evidence and credibility of either the plaintiffs or the defendants, or other percipient witnesses, but accepts as true all evidence favorable to the plaintiffs. Here, the issues boiled down to a classic factual dispute that could be decided only by weighing the credibility of the witnesses —which is not appropriate in a special motion to strike.
The points noted above are some of the plaintiff’s options if they lose on Prong One of the anti-SLAPP analysis and must attempt to prevail on Prong Two. Among the take-aways from the court’s opinion is that in the analysis of fact versus opinion, the question is not whether an allegedly defamatory statement is fact, rather than opinion. The correct question is, could a reasonable fact finder conclude the published statement declares or implies a provably false assertion of fact?
[1] Code Civ. Proc. § 425.16. See also Schaffer v. City and County of San Francisco (2008)168 Cal.App.4th 992, 1002. “[T]he anti-SLAPP statute is not an immunity statute; it provides a means by which defendants can protect themselves against certain meritless claims at an early stage of the litigation.” (italics added)
[2] Yu v. Signet Bank/Virginia, (2002)103 Cal.App.4th 298, 317 (“plaintiff’s burden as to the second prong of the anti-SLAPP test is akin to that of a party opposing a motion for summary judgment”).
[3] “We do not weigh credibility, nor do we evaluate the weight of the evidence. Instead, we accept as true all evidence favorable to the plaintiff and assess the defendant’s evidence only to determine if it defeats the plaintiff’s submission as a matter of law.” Overstock.com, Inc. v. Gradient Analytics, Inc., (2007)151 Cal.App.4th 688, 699.
[4] Ibid., citing Ruiz v. Harbor View Community Assn., (2005)134 Cal.App.4th 1456, 1471.
[5] KM Strategic Mgmt., LLC v. Am. Casualty Co., (2015)156 F.Supp.3d 1154, 1166 (C.D. Cal.). Both slander and libel require “a false and unprivileged publication.” Id., at 1167 (quoting Cal. Civ. Code §§ 45, 46). “To be considered ‘published,’ the false statement must be made to at least one person other than the defamed.” Ibid.
[6] Global Telemedia Intern, Inc. v. Doe 1, 132 F.Supp.2d 1261, 1267–1268 (C.D. Cal.). “[A] court must put itself in the place of an average reader and determine the natural and probable effect of the statement ….” ComputerXpress, Inc. v. Jackson, (2001) 93 Cal.App.4th 993, 1011.
[7] Appeal from the Second Appellate District, Case No.: S244157; 439 P.3d 1156; 246 Cal.Rptr.3rd 591.
[8] Bently Reserve LP v. Papaliolios, (2013) 218 Cal.App.4th 418, 427 (citations omitted). The key is not parsing whether a published statement is fact or opinion, but “whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact.” Id., at 427, citing Franklin v. Dynamic Details, Inc., (2004)116 Cal.App.4th 375.
[9] Ibid, at 429.
[10] Bently Reserve, supra, 218 Cal.App.4th at 429–430.
[11] Sanders v. Walsh, 219 Cal.App.4th 855, 864 (2013), referring to Summit Bank v. Rogers,(2012) 206 Cal.App.4th 669, 696.
[12] See, Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton, (2005)133 Cal.App.4th 658, 676.
[13] Id., citations omitted.
[14] American Drug Stores, Inc. v. Stroh, (1992) 10 Cal.App.4th 1446, 1453.