IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
GAVIN C. NEWSOM, ) ) Plaintiff, ) ) v. ) Case No. N25C-06-251 SPL ) FOX NEWS NETWORK, LLC, ) ) Defendant. )
Submitted: January 30, 2026 Decided: April 30, 2026
MEMORANDUM OPINION AND ORDER
On Fox News Network, LLC’s Motion to Dismiss the Amended Complaint and Special Motion to Strike, DENIED.
On Fox News Network, LLC’s Motion for Attorneys’ Fees and Costs Incurred in Moving to Strike Plaintiff’s Claim under Unfair Competition Law, DENIED.
Michael J. Teter, Esq. (Argued), LEGAL ACCOUNTABILITY CENTER TETER LEGAL, Salt Lake City, Utah, Mark Bankston, Esq., FARRAR & BALL LLP, Houston, Texas, Brian E. Farnan, Esq., Michael J. Farnan, Esq., FARNAN LLP, Wilmington, Delaware, Attorneys for Plaintiff, Gavin C. Newson.
Patrick F. Philbin, Esq. (Argued), Kyle T. West, Esq., Chase T. Harrington, Esq. TORRIDON LAW PLLC, John L. Reed, Esq. of DLA PIPER LLP (US), Attorneys for Defendant, Fox News Network, LLC.
LUGG, J. INTRODUCTION
In the midst of civil unrest in Los Angeles, California, Governor Gavin C.
Newsom spoke on the telephone with President Donald Trump. The call took place
after 10:00 p.m. on the night of Friday, June 6, 2025 (Pacific Daylight Time) (after
1:00 a.m. on Saturday, June 7, 2025 (Eastern Daylight Time)). The two did not speak
again before President Trump, at a Tuesday, June 10, 2025, Oval Office press
conference, was asked when he last spoke with Governor Newsom; President Trump
responded that he and Governor Newsom spoke “[a] day ago.” Soon thereafter,
Governor Newsom posted on X that “[t]here was no call.” President Trump then
provided Fox News Network (“FNN”) reporters a “phone log” evidencing the Friday
night / Saturday morning call he had with Governor Newsom. On this information,
FNN published – through nationally televised reporting overlaid by chyron1 – that
“Gavin Lied About Trump’s Call.”
Governor Newsom sued FNN for defamation. FNN has moved to dismiss and
has moved for attorneys’ fees and costs incurred in its effort to strike Governor
Newsom’s California Unfair Competition Law claim. Having reviewed and
considered the Amended Complaint, the parties’ briefing and arguments, and the
record in this case, the Court denies FNN’s motions.
1 A “chyron” is “a caption superimposed over usually the lower part of a video image (as during a news broadcast.)” https://www.merriam-webster.com/dictionary/chyron. 1 FACTUAL AND PROCEDURAL BACKGROUND2
On June 6, 2025, at approximately 10:23 p.m. Pacific Daylight Time (or June
7, 2025, at approximately 1:23 a.m. Eastern Time), California Governor Gavin
Newsom spoke on the telephone with President Donald Trump for about 16
minutes.3 The next day, Governor Newsom discussed this conversation in an
interview with MSNBC.4 Other news outlets covered Governor Newsom’s
statements about the call,5 and, on Sunday, June 8, 2025, Fox News Sunday, The Big
Weekend Show, and Life, Liberty, & Levin noted that a call occurred between
Governor Newsom and President Trump.6 On Monday, June 9, 2025, a local FNN
2 The facts are drawn from the Amended Complaint and, to the extent necessary to decide the pending motions, the attachments supplementing the parties’ briefs. On a motion to dismiss, the Court views all well-pled facts as true and in a light most favorable to Governor Newsom, the non-moving party. See e.g. Cent. Mortg. Co. v. Morgan Stanley Mortg. Cap. Holdings LLC, 27 A.3d 531, 536 (Del. 2011). “Indeed, it may, as a factual matter, ultimately prove impossible for the plaintiff to prove his claims at a later stage of a proceeding, but that is not the test to survive a motion to dismiss.” Id. The Governor of California and the President of the United States are principal actors. And, while the lawsuit is brought by the Governor of California in his individual capacity, his position as Governor is pertinent to an assessment of his defamation claim. For these reasons, unless quoting a source that declines to provide these individuals’ titles, the Court will refer to these individuals as Governor Newsom and President Trump. 3 D.I. 14 (“Amend. Compl.”) ¶ 20. 4 Id. ¶ 22. 5 Id. ¶¶ 23, 24, 27. 6 Id. ¶ 27. 2 affiliate aired an interview between Governor Newsom and FNN reporter Elex
Michaelson, in which Governor Newsom discussed his phone call with President
Trump.7
On Tuesday, June 10, 2025, during a press conference in the White House
Oval Office, President Trump discussed the civil unrest in Los Angeles, his plan to
deploy the National Guard, and his criticisms of Governor Newsom.8 A reporter
asked President Trump, “[w]hen was the last time you spoke to Governor
Newsom?”9 President Trump responded “A day ago. Called him to tell him, got to
do a better job, he’s doing a bad job. Causing a lot of death and a lot of potential
death.”10
Governor Newsom, on X, responded to a video clip of President Trump’s
statement about a call “[a] day ago” writing that “There was no call. Not even a
voicemail. Americans should be alarmed that a President deploying Marines onto
our streets doesn’t even know who he’s talking to.”11 Informed of Governor
Newsom’s X post, President Trump provided FNN host John Roberts a screenshot
7 Id. ¶¶ 24, 25, 26. 8 Id. ¶¶ 30, 32. 9 Id. ¶ 33. 10 Id. ¶ 34. 11 Id. ¶ 35. 3 of his call log revealing the sixteen-minute phone conversation between Governor
Newsom and President Trump on June 7, 2025.12
Roberts, on X, then replied to Governor Newsom’s statement that “[t]here was
no call,” by posting:
President Trump just contacted me from Air Force 1 to say this: “First call was not picked up. Second call, Gavin picked up, we spoke for 16 minutes. I told him to, essentially, ‘get his ass in gear,’ and stop the Riots, which were out of control. More than anything else, this shows what a liar he is – Said I never called. Here is the evidence.”13
Roberts did not include the screenshot of President Trump’s call log with his X
post.14 On the afternoon of June 10, 2025, reporting on FNN, Roberts referenced
the call between Governor Newsom and President Trump,15 describing President
Trump as stating the call occurred “yesterday or the other day.”16
Later in the evening of June 10, Jesse Watters, on his FNN show Jesse Watters
Primetime, played an edited clip of the Oval Office press conference.17 The edited
footage included President Trump’s comment, “Called him to tell him, got to do a
better job, he’s doing a bad job. Causing a lot of death and a lot of potential death,”
12 Id. ¶ 36. 13 Id. ¶37. 14 Id. ¶ 37. 15 Id. ¶ 40. 16 Id. ¶ 41. 17 Id. ¶ 45. 4 but omitted President Trump’s statement that he spoke to Governor Newsom “[a]
day ago.”18 Watters then commented:
Newsom responded, and he said there wasn’t a phone call. He said Trump never called him. Not even a voicemail, he said. But John Roberts got Trump’s call logs, and it shows Trump called him late Friday night and they talked for 16 minutes. Why would Newsom lie and claim Trump never called him? Why would he do that?19
The chyron appearing below Watters during his report displayed a “Fox News Alert”
that “Gavin Lied About Trump’s Call.”20
Governor Newsom, on June 27, 2025, issued a retraction demand to FNN and
initiated a defamation lawsuit in Delaware.21 On July 17, 2025, Watters, on Jesse
Watters Primetime, addressed his June 10, 2025, report.22 Watters played the
unedited video of President Trump’s response to the question: “When was the last
time you spoke to Governor Newsom?” and included President Trump’s response
that he and Governor Newsom spoke “[a] day ago.” 23 Watters explained that, in his
June 10 report, he excluded President Trump’s response that the call occurred “[a]
18 Id. ¶ 47. 19 Id. ¶ 47. 20 Id. ¶ 48. 21 Id. ¶ 74; D.I. 18 (“Def. Mot.”), Ex. E; D.I. 1. 22 Amend. Compl. ¶ 75. 23 Id. ¶ 75. 5 day ago” because “it didn’t seem relevant.”24 Watters stated that he understood
Governor Newsom’s post – “[t]here was no call. Not even a voicemail” – to mean
there was never a call between Governor Newsom and President Trump, not that
President Trump’s description of the timing of the call was incorrect.25 Watters
concluded by noting, “[Newsom] didn’t deceive anybody on purpose, so I’m sorry,
he wasn’t lying. He was just confusing and unclear. Next time, Governor, why don’t
you just say what you mean.”26 The chyron beneath Watters read, “Gavin Didn’t
Lie, He Was Just Sloppy.”27
Governor Newsom amended his original complaint to remove the California
Unfair Competition Claim and to include Watters’ July 17, 2025, response to the
retraction demand.28 FNN moved to dismiss the amended complaint on September
25, 2025.29 Upon Governor Newsom’s withdrawal of the Unfair Competition Claim
in his amended complaint, FNN now seeks attorneys’ fees and costs incurred in filing
its original motion and as a “prevailing party” under California’s anti-SLAPP law.30
24 Id. ¶ 75. 25 Id. ¶ 75. 26 Id. ¶ 75. 27 Id. ¶ 75. 28 See id. 29 Def. Mot. 30 D.I. 17 at 1-2. 6 FNN contends the complaint must be dismissed under the doctrine of forum
non conveniens because allowing the lawsuit to proceed in Delaware would impose
a substantial hardship on FNN.31 As to Governor Newsom’s defamation claim, FNN
asserts the complaint fails to plausibly allege: (1) facts showing Watters’ statement
was substantially untrue; (2) the statement was not a protected opinion; and (3) actual
malice.32 Governor Newsom responded in opposition,33 and FNN replied.34 The
Court heard oral argument on January 30, 2026, and took the matter under
advisement.35
31 Def. Mot. at 2, 10. 32 Id. at 3. 33 D.I. 23 (“Pl. Resp.”). 34 D.I. 30 (“Def. Reply”). 35 D.I. 32. 7 ANALYSIS
I. FORUM NON CONVENIENS
A. Legal Standard for forum non conveniens claims
FNN argues that this case, to the extent that it belongs anywhere, does not
belong in Delaware.36 Governor Newsom contends that FNN has not shown an
overwhelming hardship compelling dismissal of the Delaware case.37 The parties
appear to agree that California substantive law controls.38 On the record before it,
the Court finds that California law applies to the substantive issues raised by
Governor Newsom’s defamation claim,39 and that Delaware procedural law
controls.40
Delaware Superior Court Civil Rule 12(b)(3) governs a motion to dismiss
based on forum non conveniens.41 The doctrine of forum non conveniens empowers
this Court to “decline to hear a case despite having jurisdiction over the subject
36 Def. Mot. at 9. 37 Pl. Resp. at 6. 38 Def. Mot. at 11; Pl. Resp. at 8-9. 39 Restatement (Second) of Conflict of Laws § 150 (Am. Law Inst. 1971) (“the state of most significant relationship will usually be the state where the [plaintiff] was domiciled at the time, if the matter complained of was published in that state.”). 40 See, e.g., US Dominion, Inc. v. Fox News Network, LLC, 2021 WL 5984265 at *18 (Del. Super. Ct. Dec. 16, 2021). 41 Arrowood Indem. Co. v. AmerisourceBergen Corp., 2023 WL 2726924, at *8 (Del. Super. Ct. Mar. 30, 2023). 8 matter and the parties.”42 Delaware Courts rarely grant relief “based on forum non
conveniens, and the doctrine is not a vehicle by which the Court should determine
which forum would be most convenient for the parties.”43 The doctrine allows the
Court to exercise some control over a foreign plaintiff’s access to a forum in
Delaware.44 “Forum non conveniens motions are addressed to the trial court’s
discretion”45 and are only granted in “rare case[s].”46
Where there are no issues of prior pendency in other jurisdictions, this Court,
in assessing a forum non conveniens claim, considers the “Cryo-Maid factors”:
(1) the relative ease of access to proof; (2) the availability of compulsory process for witnesses; (3) the possibility of the view of the premises; (4) whether the controversy is dependent upon the application of Delaware law which the courts of this State more properly should decide than those of another jurisdiction; (5) the pendency or nonpendency of a similar action or actions in another
42 Chrysler First Bus. Credit Corp. v. 1500 Locust Ltd. Partnership, 669 A.2d 104, 106 (Del. 1995). 43 In re Citigroup, Inc. S’holder Derivative Litig., 964 A.2d 106, 117 (Del. Ch. 2009) (citing Taylor v. LSI Logic Corp., 659 A.2d 1196, 1199 (Del. 1997)). 44 Ison v. E.I. DuPont de Nemours and Co., Inc., 729 A.2d 832, 839-42 (Del. 1999) (examining doctrine of forum non conveniens and concluding that “[i]n Delaware jurisprudence there is a proper place for dismissals based on forum non conveniens.”). 45 GXP Cap., LLC v. Argonaut Mfg. Servs., Inc., 253 A.3d 93, 97 (Del. 2021). 46 Aimbridge Hosp., LLC v. Plaza Resort Atlantic Ocean LLC, 2024 WL 3949965, at *2 (Del. Super. Ct. Aug. 26, 2024). 9 jurisdiction; and (6) all other practical problems that would make the trial of the case easy, expeditious and inexpensive.47
Dismissal on forum non conveniens grounds requires the movant to show that
“overwhelming hardship and inconvenience” would result if dismissal is not
granted.48 “It is not enough that all of the Cryo-Maid factors may favor defendant.”49
Depriving the plaintiff of their chosen forum requires the movant to meet the high
burden of showing that the Cryo-Maid factors weigh so heavily that the defendant
will face overwhelming hardship if the lawsuit proceeds in Delaware.50 The
overwhelming hardship standard is not an “insurmountable burden for
defendants;”51 it is a “stringent,” but not “preclusive” standard.52 On the record here,
the Court concludes that FNN has failed to establish overwhelming hardship
warranting removal from this forum.
47 Martinez v. E.I. DuPont de Nemours and Co., Inc., 86 A.3d 1102, 1104 (Del. 2014) (citing Taylor, 689 A.2d at 1198-99 (detailing the factors set forth in Gen. Foods Corp. v. Cryo-Maid, Inc., 198 A.2d 681 (Del. 1964)). 48 BCORE Timber EC Owner LP v. Qorvo US, Inc., 2023 WL 2985250, at *2 (Del. Super. Ct. Apr. 18, 2023). 49 Chrysler First Bus., 669 A.2d at 105. 50 See Ison, 729 A.2d 832, 842 (Del. 1999); see also Warburg, Pincus Ventures, L.P. v. Schrapper, 774 A.2d 264, 267 (Del. 2001). 51 Martinez, 86 A.3d at 1105. 52 Id. 10 B. Application of the forum non conveniens standard
1. Relative Ease of Access of Proof
FNN contends that the Court should dismiss the Delaware action because it
involves “a California resident claiming California-based injuries, while Fox News
Network is headquartered in and produced the challenged statements in New
York.”53 Governor Newsom responds that where the defendant is a “larger, more
sophisticated entity,” such as FNN, “the hardship of out-of-state litigation is
lessened”54 and that California does not present a more favorable forum than
Delaware because witnesses are subject to Delaware process.55
The location of witnesses and evidence may stretch from New York, where
the broadcast initiated, to California, where Governor Newsom resides. But the
advancement of “modern methods of information transfer render concerns about
transmission of documents virtually irrelevant.”56 Likewise, modern methods of
transportation have lessened the Court’s concern about the travel of witnesses who
53 Def. Mot. at 10. 54 Pl. Resp. at 7. 55 Id. at 7-8. 56 In re CVS Opioid Ins. Litig., 2022 WL 3330427, at *7 (Del. Super. Ct. Aug. 12, 2022) (quoting Barrera v. Monsanto Co., 2016 WL 4938876, at *6 (Del. Super. Ct. Sept. 13, 2016)). 11 live outside of Delaware.57 The use of video conferencing technology also provides
a viable method to reduce inconvenience, allowing witnesses to provide testimony
remotely and reducing the need for physical travel.58 And, as here, where “there is
no single forum or locality in which the bulk of witnesses are located, the location
of witnesses [does] not weigh in favor of one forum or the other.”59
Governor Newsom sued FNN in Delaware, FNN’s corporate home, for
statements published in a national broadcast. To be sure, some witnesses and
evidence may cross state lines; however, the associated burdens extend to both
Governor Newsom and FNN and, of course, there is no single forum convenient for
all parties and witnesses.
2. Availability of Compulsory Process for Witnesses
FNN contends that witnesses such as Governor Newsom’s staff and social
media team are beyond the Court’s compulsory process.60 Governor Newsom
responds that “he has subjected himself to this Court’s jurisdiction and compulsory
57 Rapoport v. Litigation Trust of MDIP Inc., 2005 WL 3277911, at *6 (Del. Ch. Nov. 23, 2005). 58 American Guar. & Liability Ins. Co. v. Intel Corp., 2009 WL 2589597, at *12 (Del. Super. Ct. July 24, 2009). 59 Rapoport, 2005 WL 3277911, at *6 (cleaned up). 60 Def. Mot. at 10-11. 12 process will be available for him to testify” and that the witnesses relevant to this
matter are subject to compulsory process.61
To the extent there may be some difficulty in securing evidence, the Court
should consider whether “another forum would provide a substantial improvement
as to the number of witnesses who would be subject to compulsory process.”62 FNN
identifies Governor Newsom’s staff and social media team as witnesses whose
testimony would be unavailable if this case proceeds in Delaware.63 Not so.
California64 and Delaware65 have both adopted the Uniform Interstate Depositions
and Discovery Act which provides FNN the necessary tools to compel depositions
of any out-of-state witnesses. And extant technology mitigates any inconvenience
in case investigation and preparation; “video depositions or transcribed depositions
can be taken at most places where non-[party] witnesses are located.”66
61 Pl. Resp. at 8. 62 Mt. Hawley Ins. Co. v. Jenny Craig, Inc., 668 A.2d 763, 769 (Del. Super. Ct. 1995) (citations omitted). 63 Def. Mot. at 10-11. 64 CAL. CIV. P. CODE § 2029.100 (West) (California Interstate and International Depositions and Discovery Act). 65 10 Del.C. § 4311 (Delaware Uniform Interstate Depositions and Discovery Act). 66 Chrysler Fin. Corp. v. Fruit of the Loom, Inc., 1992 WL 19945, at *2 (Del. Super. Ct. Feb. 4, 1992). 13 3. View of the Premises
The view of the premises generally holds “little to no weight even in a case
where there was a relevant ‘premises’ that the fact-finder might want to view.”67 But
here, this factor carries no weight because there is no premises to view or, viewed
another way, the premises may be viewed anywhere. Governor Newsom alleges
defamatory statements made during a national news broadcast. The briefing in this
case reveals that the partes are in possession of the pertinent “scene” – the broadcast
footage. The scene, or premises, is readily available for review and examination.68
4. Application of Delaware Law
This Court next considers “whether the controversy is dependent upon the
application of Delaware law which the courts of this State more properly should
decide than those of another jurisdiction.”69 When “important and novel issues”
stem from a different state’s law, that state is best positioned to determine the law’s
application.70 Nonetheless, “[w]hile not preferable, Delaware courts are accustomed
to applying the laws of sister states.”71
67 Hall v. Maritek Corp., 170 A.3d 149, 162 (Del. Super. Ct. 2017) (cleaned up). 68 See Doe v. Cahill, 884 A.2d 451, 464 (Del. 2005). 69 Martinez, 86 A.3d at 1109. 70 Id. at 1109-10. 71 GXP Capital, LLC, 234 A.3d at 1197 (citing Taylor, 689 A.2d at 1200). 14 FNN contends that, under Martinez v. E.I. DuPont de Nemours & Co., “courts
must give ‘weight to a defendant’s interest in having important issues of foreign law
decided by the courts whose law governs the case.’”72 Governor Newsom responds
this case does not present novel or challenging issues necessitating removal; he
points to the fact that Martinez involved a novel legal issue of Argentinian law,
foreign plaintiffs, and a foreign language.73 Governor Newsom argues Delaware as
the forum state in Martinez was impractical, while the challenges supporting
removal in Martinez are absent here.74
In Martinez, the Delaware Supreme Court affirmed this Court’s dismissal
under forum non conveniens where Argentinian nationals initiated a lawsuit in
Delaware invoking Argentinian substantive law, drafted in Spanish.75 The Delaware
Supreme Court found these factors, and the unique international policy issues,
rendered Argentina’s Courts best equipped to hear the case.76 The Court concluded
that Delaware is not a proper venue where “a Delaware court was being asked to
72 Def. Reply at 4. 73 Pl. Resp. at 5. 74 Id. 75 Martinez, 86 A.3d at 1106-07. 76 Id. at 1107-08. 15 decide complex and unsettled issues of Argentine tort law, based on expert testimony
extrapolating from sources of law expressed in a foreign language.”77
These unique considerations do not exist here. Delaware Courts are capable
of addressing defamation claims guided by the substantive law of a sister state. FNN
claims that California’s retraction statute and anti-SLAPP law provide important
protection to publishers like FNN and that should compel this Court to allow
California to decide this case.78 But Delaware courts are fully capable of applying
California law and “often decide legal issues—even unsettled ones—under the law
of other jurisdictions.”79 The application of California substantive law here is not a
compelling reason to grant dismissal under the doctrine of forum non conveniens.
5. Pendency of Similar Action in Other Jurisdictions
Where no other actions are pending between the parties, “the plaintiff’s choice
of forum is accorded even more weight.”80 The absence of other pending litigation
between Governor Newsom and FNN therefore “weighs significantly against”
granting FNN’s forum non conveniens motion.81
77 Id. at 1108 (Del. 2014) (cleaned up). 78 Def. Mot. at 9, 28-29. 79 Berger v. Intelident Solutions, Inc., 906 A.2d 134, 137 (Del. 2006) (citing Taylor, 689 A.2d at 1200). 80 Mar-Land Indus. Contractors, Inc. v. Caribbean Petroleum Refining, L.P., 777 A.2d 774, 778 (Del. 2001). 81 Berger, 906 A.2d at 137. 16 6. Other Practical Problems
The sixth and final Cryo-Maid factor examines “all other practical problems
that would make the trial of the case easy, expeditious, and inexpensive.”82 FNN
does not identify any other practical problems not previously addressed. FNN chose
to establish its corporate home in Delaware. In so doing, it has availed itself of the
benefits of this State. This self-selected domicile, too, serves to establish Delaware
as a jurisdiction for resolving suits against it. For this reason, and because the Cryo-
Maid factors do not favor dismissal, FNN’s motion to dismiss on the ground of forum
non conveniens is denied.
82 BCORE Timber, 2023 WL 2985250, at *7. 17 II. THE DEFAMATION CLAIM
A. The Rule 12(b)(6) standard for a defamation claim.
Delaware Superior Court Civil Rule 12(b)(6) governs a motion to dismiss for
failure to state a claim upon which relief can be granted.83 When assessing a motion
to dismiss under this rule, this Court must:
(1) accept all well pleaded factual allegations as true, (2) accept even vague allegations as “well pleaded” if they give the opposing party notice of the claim, (3) draw all reasonable inferences in favor of the non-moving party, and (4) do not affirm a dismissal unless the plaintiff would not be entitled to recover under any reasonably conceivable set of circumstances.84
Delaware’s pleading standards at the motion to dismiss stage are minimal.85
This Court, in U.S. Dominion v. Fox, explained that even where the applicable
substantive state law contains an anti-SLAPP statute, Delaware’s conceivability
standard of review applies to a motion to dismiss.86 A complaint is sufficient to
survive a motion to dismiss under Rule 12(b)(6) “[if] a plaintiff may recover under
any reasonably conceivable set of circumstances susceptible of proof under the
complaint.”87 If, based on the circumstances presented, the plaintiff may recover,
83 Super. Ct. Civ. R. 12(b)(6). 84 Cent. Mortg. Co. v. Morgan Stanley Mortg. Capital Holdings LLC, 27 A.3d 531, 535 (Del. 2011). 85 Id. at 536. 86 2021 WL 5984265 at *18-19 (Del. Super. Ct. Dec. 16, 2021). 87 Spence v. Funk, 396 A.2d 967, 968, 972 (Del. 1978). 18 then the motion to dismiss must be denied.88 Conversely, a motion to dismiss will
be granted if “under no reasonable interpretation of the facts alleged could the
complaint state a complaint for which relief might be granted.”89 The Court need
not “accept conclusory allegations unsupported by specific facts . . . [or] draw
unreasonable inferences in the plaintiff’s favor.”90
Defamation suits call for additional scrutiny when evaluating a motion to
dismiss. “Early dismissal of defamation lawsuits for failure of the complaint to state
a claim on which relief can be granted not only protects against the costs of meritless
litigation, but provides assurance to those exercising their First Amendment rights
that doing so will not needlessly become prohibitively expensive.”91 Courts set a
“high bar to clear to establish defamation,” especially for claims made by a public
figure against the free press.92
B. Applicable substantive law.
This Court follows the Restatement (Second) of Conflict of Laws which
directs that the law of the jurisdiction with the “most significant relationship” to the
88 Id. at 968. 89 Unbound Partners Ltd. P’ship v. Invoy Holdings Inc., 251 A.3d 1016, 1023 (Del. Super. Ct. 2021) (internal citations omitted). 90 Clinton v. Enterprise Rent-A-Car Co., 977 A.2d 892, 895 (Del. 2009). 91 ShotSpotter Inc. v. VICE Media, LLC, 2022 WL 2373418, at *6 (Del. Super. Ct. Jun. 30, 2022) (cleaned up). 92 Id. (cleaned up). 19 case governs.93 The Restatement further specifies that “the state of the most
significant relationship will usually be the state where the [plaintiff] was domiciled
at the time, if the matter complained of was published in that state.”94 In Schmidt v.
Washington Newspaper Publishing Company, the plaintiff was a resident of
California, and no other state held a “more significant relationship” to the case;
therefore, that court applied California substantive law.95 So, too, here. The parties
do not identify another jurisdiction with any significant relationship to this case; in
fact, they appear to agree that California substantive law controls.96 In any event,
the Court will apply California substantive law because that is the plaintiffs’ home
state.
C. Federal Constitutional Considerations
To the extent First Amendment protections are asserted, the Court will apply
precedent assessing Constitutional protections applicable to defamation claims.97
“The Free Speech Clause of the First Amendment provides that ‘Congress shall
93 Smith v. Delaware State Univ., 47 A.3d 472, 480 (Del. 2012). 94 Restatement (Second) of Conflict of Laws § 150 (Am. Law Inst. 1971). 95 Schmidt v. Washington Newspaper Publ’g Co., 2019 WL 4785560, at *2 (Del. Super. Ct. Sept. 30, 2019). 96 Def. Mot. at 11; Pl. Resp. at 8-9. 97 See Page v. Oath, 2021 WL 528472, at *3 (Del. Super. Ct. Feb. 11, 2021) (finding a choice of law determination between New York and Delaware unnecessary for defamation claims). 20 make no law . . . abridging the freedom of speech.’”98 But, Congress and the States
may impose liability for defamatory speech “subject to a number of constitutional
guardrails.”99 To be actionable, a statement must “be understood as defamatory by
a reasonable third party and was published.”100 “[W]hen the challenged statement
is on a matter of public concern, the plaintiff must demonstrate that the statement
was false.”101 Statements of opinion on matters of public concern “are not
categorically shielded from actionability.”102 Rather, to be actionable, defamatory
statements of opinion must “reasonably be interpreted as stating or implying
defamatory facts about an individual that are provably false.”103
Commentary relating to political, social, and other community concerns are
fairly considered addressing matters or public concern warranting greater
Constitutional scrutiny.104 The Delaware Supreme Court has concluded that
“statements on matters of public concern are actionable in defamation when, even if
98 Cousins v. Goodier, 283 A.3d 1140, 1148 (Del. 2022) (quoting U.S. CONST. amend I) (cleaned up). 99 Id. (cleaned up). 100 Id. (cleaned up). 101 Id. (cleaned up). 102 Id. (cleaned up). 103 Id. (cleaned up). 104 Id. (cleaned up). 21 presented as ‘opinion,’ they may be reasonably construed as stating or implying
defamatory facts about an individual that are provably false.”105
For statements concerning a public official to be actionable, a plaintiff must
allege actual malice.106 “‘Actual malice’ means that a defendant published false
information about a plaintiff ‘with knowledge that it was false or with reckless
disregard of whether it was false or not.’”107 Reckless disregard is understood to
mean the defendant “entertained serious doubts as to the truth of [the] publication”
or had a “high degree of awareness of [its] falsity.”108 “The failure to investigate a
statement’s truth, standing alone, is not evidence of actual malice, even if a prudent
person would have investigated before publishing the statement. But a speaker
cannot purposefully avoid the truth and then claim ignorance.”109 If a plaintiff is
able to offer “some direct evidence that the defendant’s statement “was probably
false, the Court may infer that the defendant intended to avoid the truth.”110
105 Id. at 1155 (Del. 2022) (cleaned up). 106 New York Times Co. v. Sullivan, 376 U.S. 254, 279-280 (1964). 107 US Dominion, Inc., LLC, 2021 WL 5984265, at *28 (cleaned up). 108 US Dominion, Inc., 2021 WL 5984265, at *28 (cleaned up). 109 Id. (cleaned up). 110 Id. (cleaned up). 22 D. Governor Newsom’s defamation claim
Under California law, defamation “involves (a) a publication that is (b) false,
(c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or
that causes special damage.”111 “The defamatory statement must also specifically
refer to, or be ‘of and concerning,’ the plaintiff.”112 As explained in McGarry v.
University of San Diego, a valid defamation claim must be supported by statements
containing a “provable falsehood,” while generally protected, “expressions of
opinion may imply an assertion of objective fact and a statement that implies a false
assertion of fact, even if couched as an opinion can be actionable.”113
FNN argues that its statements cannot be proven false because they are
statements of opinion.114 Because falsity is a necessary element of defamation, “only
statements alleging facts can properly be the subject of a defamation action.”115 Pure
opinions are not actionable.116 Opinions do not, however, enjoy blanket
protection.117 “[W]here an expression of opinion implies a false assertion of fact,
111 Taus v. Loftus, 151 P.3d 1185, 1209 (Cal. 2007). 112 John Doe 2 v. Superior Court, 206 Cal.Rptr.3d 60, 68 (Cal. Ct. App. 2016). 113 64 Cal.Rptr.3d 467, 479 (Cal. Ct. App. 2007). 114 Def. Mot. at 15. 115 US Dominion, Inc., 2021 WL 5984265, at *26. 116 Id. 117 ZL Technologies, Inc. v. Does 1-7, 220 Cal.Rptr.3d 569, 589 (Cal. Ct. App. 2017). 23 the opinion can constitute actionable defamation.”118 Whether a statement
constitutes a statement of fact or opinion is a question of law.119 As such, this Court
must determine whether the statements expressed in FNN’s broadcasts are
actionable: “whether a reasonable fact finder could conclude that the published
statement declares or implies a provably false assertion of fact.”120
To answer this question, California Courts have developed a “totality of the
circumstances test,” under which the language and context of the statement are to be
examined.121 For the statement to be defamatory, it must be “understood in a
defamatory sense.”122 Where the indicia of an opinion piece are present, “readers
can be expected to discount the statements made in that context as more likely to be
the stuff of opinion than fact.”123 Courts must consider “the nature and full content
of the communication and the knowledge and understanding of the audience to
whom the publication was directed.”124
118 Id. at 589 (cleaned up). 119 Franklin v. Dynamic Details, 10 Cal.Rptr.3d 429, 436 (Cal. Ct. App. 2004). 120 Id. 121 Baker v. Los Angeles Herald Examiner, 721 P.2d 87, 90 (Cal. 1986). 122 Id. 123 Morningstar v. Superior Court, 29 Cal.Rptr.2d 547, 556 (Cal. Ct. App. 1994) (quoting Smolla, Law of Defamation (1991) § 612[4] at 6-45 to 6-46). 124 Baker, 721 P.2d at 91. 24 California law has identified three types of defamation plaintiffs that “must
prove actual malice when defamatory speech relates to a matter of public concern:”
the public official, the general-purpose public figure, and the limited purpose public
figure.125 Whether a plaintiff is a public official or public figure is a “question of
law for the Court to decide.”126 A person who holds a governmental office is a public
official.127 Those who have accepted a governmental office “are deemed to have
accepted the risk of closer public scrutiny.”128 Governor Newsom, as a public
official, must allege actual malice on behalf of FNN in the publication of defamatory
speech.
A plaintiff can demonstrate actual malice through circumstantial evidence.129
Circumstantial evidence may include:
(i) obvious reason to doubt the veracity of the informant; (ii) a basis wholly on an unverified, anonymous source; (iii) such an inherent improbability ‘that only a reckless man would have put them in circulation;’ (iv) financial motive; (v) a departure from journalistic standards; (vi) a preconceived false narrative; and (vii) a refusal to retract the statement and continuing to repeat statements that have been proven false.130
125 Mosesian v. McClatchy Newspapers, 233 Cal.App.3d 1685, 1694 (1991). 126 Id. 127 Id. at 1696. 128 Id. 129 US Dominion, Inc. v. Fox News Network, LLC, 293 A.3d 1002, 1043 (Del. Super. Ct. 2023). 130 Id. (internal citations omitted). 25 No single factor is conclusive, and a plaintiff may prove actual malice through an
accumulation of factors.
1. It is reasonably conceivable that FNN knew the statements were false at the time of making them.
FNN contends that the “‘gist’ or ‘sting’ of the suggestion that Newsom lied
was substantially true,”131 because “[t]he word ‘lie’ certainly encompasses
Newsom’s misleading tweet categorically denying he had a call with the
President.”132 “Substantial truth,” FNN asserts, “turns on what Newsom actually
said, not what he wishes he had said.”133 Governor Newsom responds that “the
central—indeed, the only—dispute between Newsom and Trump was when the two
had last spoken.”134 According to Governor Newsom, this issue was so important
that “reporters asked Trump when he has last spoken to Newsom.”135 Governor
Newsom’s comment that he had no call with President Trump “[a] day ago” was not
a lie as “[t]he timing of any call was not minor. It was the question.”136
131 Def. Mot. at 13. 132 Id. at 13-14. 133 Id. at 14. 134 Pl. Resp. at 12. 135 Id. 136 Id. 26 Generally, “a defamation claim does not require a plaintiff to plead or prove
falsity or malice.”137 But public officials are considered “[persons] of fortitude, able
to thrive in a hardy climate.”138 For this reason, public officials must prove “that the
statement was made with ‘actual malice’—that is, with knowledge that it was false
or with reckless disregard of whether it was false or not.”139
Governor Newsom offers Dickinson v. Cosby140 as a framework for assessing
the falsity of FNN’s statements. There, the plaintiff publicly accused Bill Cosby of
rape.141 Cosby’s attorneys declared the “story accusing Bill Cosby of rape is a lie”
and publicly branded Dickinson as a liar.142 Dickinson sued Cosby for
defamation.143 Cosby argued that the “gist or sting of the statements was not that
Dickinson lied about the rape allegations, but simply that she was a liar,” which
Cosby argued was substantially true.144 The Court disagreed and found Cosby’s
repeated characterization of Dickinson’s rape allegation as a fabrication was not a
137 ZL Technologies, 220 Cal.Rptr.3d at 595 (cleaned up). 138 N.Y. Times Co., 376 U.S. at 273 (1964). 139 Id. at 279-80. 140 225 Cal.Rptr.3d 430 (Cal. Ct. App. 2017). 141 Dickinson v. Cosby, 225 Cal.Rptr.3d 430, 438 (Cal. Ct. App. 2017). 142 Id. at 440. 143 Id. at 437. 144 Id. at 461. 27 “minor inaccuracy,” but rather at the heart of the statements and that the “gist” or
“sting” of the statements was the falsity of the rape allegations.145
Here, Governor Newsom contends that the gist or sting of FNN’s statements
was that Governor Newsom lied about having spoken to President Trump.146 Not
that he is a liar generally.147 At this stage of the litigation, based on the record before
it, and drawing all reasonable inferences in favor of the non-moving party –
Governor Newsom – the Court finds that the complaint sets forth facts on which it
is reasonably conceivable the plaintiff could recover.
The crux of FNN’s statements is that Governor Newsom was dishonest – lied
– about not speaking with President Trump. Roberts’ response on June 10, 2025, to
Governor Newsom’s X post states that President Trump’s call logs, and President
Trump himself, assert that the President spoke with Governor Newsom.148 Roberts’s
response on X does not indicate when this conversation between Governor Newsom
and President Trump occurred.149 Watters’ questioned why Governor Newsom
would lie about speaking with the President.150 Watters’ statement does not indicate
145 Id. at 462. 146 Pl. Resp. at 14. 147 Id. 148 Amend. Compl. ¶ 37. 149 Id. 150 Id. ¶ 47. 28 when this conversation between Governor Newsom and President Trump
occurred.151 The issue at the heart of FNN’s statements was if Governor Newsom
ever had a phone call conversation with President Trump, not when.152 And, FNN
excluded pertinent context in casting this assertion of dishonesty.
It is reasonably conceivable, under the facts set forth in the complaint, that the
“gist” or “sting” of FNN’s statements is that Governor Newsom lied about having
ever talked with President Trump and, thus, FNN’s statements may reasonably be
understood to be substantially untrue.
2. It is reasonably conceivable that Watters’ statement is not a protected opinion.
FNN asserts that Watters’ statements are constitutionally protected opinions
based on disclosed facts.153 FNN argues that the language used by Watters indicates
his statement was an opinion because he “did not make a definitive assertion, but
instead asked questions in an openly skeptical tone.”154 Watters’ questions, FNN
contends, “Why would Newsom lie and claim that Trump never called him? Why
would he do that?” were rhetorical questions meant to invite the audience to consider
151 Id. ¶ 46. 152 See Id. ¶¶ 37, 46, 47. 153 Def. Mot. at 15. 154 Id. at 16. 29 other possibilities.155 Further, FNN argues that Jesse Watters Primetime is a “talk
show” and that audiences expect an “opinionated” host that uses “hyperbolic
language.”156 And, FNN asserts, Watters based his opinion on disclosed facts—that
Roberts had President Trump’s call logs showing a call between the President and
Governor Newsom and that Governor Newsom denied that there was a call.157
Governor Newsom argues that rephrasing statements of fact as rhetorical
questions does not immunize FNN from liability.158 “Viewers would have
understood the broadcasts as communicating as a fact that Newsom lied about the
timing of a call between himself and Trump.”159 Governor Newsom points to the
chyron beneath Watters, framed as a “Fox News Alert” stating “Gavin Lied About
Trump’s Call,” and argues that “[t]he language spoken—and displayed in the
corresponding chyron—demonstrate that FNN was presenting as fact that Newsom
was lying about not speaking to Trump.”160 Governor Newsom contends that FNN
was not basing an opinion on disclosed facts because FNN intentionally edited the
155 Id. 156 Id. at 19. 157 Id. at 18. 158 Pl. Resp. at 21. 159 Id. at 16. 160 Id. at 24. 30 clip to omit President Trump’s statement that he spoke to Governor Newsom “[a]
day ago.”161
“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.”162 However, stating “in my
opinion, this person is a liar,” “implies a knowledge of facts which lead to the
conclusion that [a particular person] told an untruth.”163 “To decide whether a
statement is fact or opinion, a court must put itself in the place of an average reader
and determine the natural and probable effect of the statement, considering both the
language and the context.”164
Here, the language of FNN’s statement is not contested. Watters, framed by
the chyron “Gavin Lied about Trump’s Call,” stated:
Newsom responded, and he said there wasn’t a phone call. He said Trump never called him. Not even a voicemail, he said. But John Roberts got Trump’s call logs, and it shows Trump called him late Friday night and they talked for 16 minutes. Why would Newsom lie and claim Trump never called him? Why would he do that?165
161 Id. at 23. 162 ZL Technologies, 220 Cal.Rptr.3d at 589 (cleaned up). 163 Milkovich v. Lorain Journal Co., 497 U.S. 1, 18 (1990). 164 Summit Bank v. Rogers, 142 Cal.Rptr.3d 40, 62 (Cal. Ct. App. 2012) (cleaned up). 165 Amend. Compl. ¶¶ 47, 48. 31 On the record presently established, this statement implies knowledge of facts that
could lead a person to believe Governor Newsom lied. FNN relied on President
Trump’s phone call logs yet excluded President Trump’s temporal description of the
call – “a day ago.”
The alleged facts do not support finding Watters’ rhetorical question to be a
constitutionally protected opinion. FNN broadcast the statement on Fox News
Channel.166 The statement was announced as a “Fox News Alert.”167 “[A] headline
over a news story arguably implies a factual assertion.”168 It is reasonably
conceivable that an average viewer could determine the statement to be one of fact,
not opinion.
3. A finding of actual malice is reasonably conceivable
FNN contends that Governor Newsom cannot meet the “daunting
requirements” of pleading actual malice.169 FNN alleges that the conclusory
allegations in Governor Newsom’s complaint that FNN “maliciously lied,” acted
“with actual malice” or “knew the falsity” of its statements, do not suffice to prove
166 Id. ¶ 48. 167 Id. 168 Moyer v. Amador Valley J. Union High School Dist., 225 Cal.App.3d 720, 726 (Cal. Ct. App. 1990). 169 Def. Mot. at 20. 32 actual malice.170 Governor Newsom responds that actual malice may be reasonably
inferred from the alleged facts in the complaint.
Governor Newsom alleges that FNN “deliberately presented a false picture”
of the June 6/7 phone call “to fulfill their preconceived narrative”171 and that “Fox
advanced this falsity about Governor Newsom out of a desire to harm him
politically.”172 He contends that FNN harbors ill-will towards him and engages in a
“pattern of employing preconceived false narratives to attack Governor Newsom.”173
To support this claim, Governor Newsom cites to a segment aired on Jesse Watters
Primetime, on June 20, 2025, in which Watters states Governor Newsom attended
“a swanky wine tasting party as riots engulfed Los Angeles and mobs vandalized
buildings.”174 While Governor Newsom asserts the June 20 comments about his
attending a “swanky wine tasting party” are false, the Court understands their
inclusion in the complaint to support his allegation of actual malice. This
“misrepresentation,” Governor Newsom argues, represents “Fox’s perverse internal
170 Id. at 21, 24. 171 Amend. Compl. ¶¶ 71, 72. 172 Id. ¶ 80. 173 Id. ¶ 85. 174 Id. ¶ 86. 33 culture and slavish partisan mission . . . to purposely avoid the truth in service of a
preconceived narrative.”175
The Amended Complaint alleges facts which, when viewed in a light most
favorable to Governor Newsom, evidence FNN published false information about
Governor Newsom with knowledge of the statement’s falsity or with a reckless
disregard for whether or not it was true. 176 Thus, under the standard applicable here,
the facts are reasonably susceptible to a finding of actual malice.
FNN also maintains that Governor Newsom failed to state a claim for
defamation based on Roberts statements177 and the wine tasting commentary.178 To
be sure, Governor Newsom’s lawsuit is against FNN for its alleged
misrepresentation of Governor Newsom’s veracity in his description of his
communication with President Trump.179 The Court understands these additional
allegations to relate to Governor Newsom’s assertion of actual malice. At this stage,
the Court declines to dissect the complaint in the manner proposed by FNN. To the
extent evidentiary objections are asserted in advance of trial, the Court will address
them at that time.
175 Id. ¶ 84. 176 See US Dominion, Inc., 2021 WL 5984265, at *28. 177 Def. Mot. at 31. 178 Id. at 33. 179 See Amend. Compl. 34 4. California Civil Code § 48a does not bar Governor Newsom’s claim.
FNN contends that Governor Newsom sent a “belated” request for correction
on June 27, 2025, the same day FNN was served with this lawsuit.180 That request,
FNN contends, does not satisfy California Civil Code § 48a, because it does not
allow FNN time to “make a correction to avoid litigation.”181 And, FNN argues,
they did issue a correction as required under § 48a.182 “Given that correction,
Newsom does not and cannot plead a ‘failure to correct’ under § 48a(b)”183 and his
complaint must fail.184
Governor Newsom responds that Ҥ 48a does not impose a requirement that a
plaintiff have served the retraction demand on a defendant before filing suit,” and
instead, provides that “a plaintiff must serve a demand ‘within 20 days after
knowledge of the publication or broadcast of the statements claimed to be
libelous.’”185 Further, Governor Newsom argues that for a retraction to be legally
sufficient and effective, “it must be full and complete and cannot be evasive or
180 Def. Mot. at 28. 181 Id. 182 Id. 183 Id. at 29. 184 Id. at 30. 185 Pl. Resp. at 35. 35 equivocal, not partial or hesitant, and it cannot contain any insinuations.”186
“Watters’s remarks,” according to Governor Newsom, “were evasive, equivocal,
partial, hesitant, and full of insinuations.”187
Under California Civil Code § 48a, in any action for defamation, the plaintiff
“shall only recover special damages unless a correction is demanded and is not
published or broadcast” and the “correction is demanded within 20 days.”188 For a
retraction or correction “to be legally sufficient and effective, it must be full and
complete and cannot be evasive or equivocal, not partial or hesitant, and it cannot
contain any insinuations. It must be an honest endeavor to repair all the wrong
caused by any defamatory statements or insinuations.”189 “[F]or a defendant to rely
upon a retraction in mitigation of damages, ‘it should appear that it was fully, fairly,
and promptly made, and is such as an impartial person would consider reasonable
and satisfactory under the circumstances of the case.’”190
Here, Governor Newsom timely served a retraction request on FNN. The
alleged defamatory statement was made on June 10, 2025, and under § 48a,
186 Id. at 36. 187 Id. 188 CAL. CIV. C. § 48a(a)-(b). 189 Weller v. American Broadcasting Companies, Inc., 232 Cal.App.3d 991, 1010 (Cal. Ct. App. 1991). 190 Id. at 1011. 36 Governor Newsom needed to serve a retraction demand within 20 days of the
defamatory statement.191 He did not need to allow FNN time to fix the error to avoid
litigation.192 Governor Newsom demanded retraction of the June 10 comment on
June 27, seventeen days after the statement was made.193 In response, Watters
published the previously deleted statement of President Trump’s that he spoke with
Governor Newsom “[a] day ago.”194 Watters commented that he understood
Governor Newsom’s X post to mean that “there was no call. Ever. Period,” not that
there was no call or voicemail a day ago.195 Watters explained that he did not find
President Trump’s temporal qualification to seem relevant.196 FNN contends Watters
July 17, 2025, statement is a full and complete retraction. But, whether Watters’
statement suffices as a retraction under California law is a matter to be determined
by the factfinder.197 Under the facts alleged, it is reasonably conceivable that a
factfinder could find Watters’ assertion that Governor Newsom was confusing,
unclear, and sloppy, to be less than the “full and complete” retraction California law
191 CAL. CIV. C. § 48a(b). 192 See id. (The statute does not prohibit a contemporaneous suit and demand). 193 Amend. Compl. ¶ 74, Def. Mot., Ex. E. 194 Amend. Compl. ¶ 75. 195 Id. ¶ 75. 196 Id. ¶ 75. 197 Twin Coast Newspapers, Inc. v. Superior Court, 208 Cal. App. 3d 656, 661-2 (1989). 37 demands. The July 17 report could equally be considered evasive, equivocal, partial,
hesitant, and replete with insinuations. Neither the timing of Governor Newsom’s
demand, nor the substance of Watters’ subsequent statement, warrant dismissal at
this time.
5. Delaware Superior Court Civil Rule 9(g) does not bar Governor Newsom’s claim.
FNN argues that “Delaware’s Rule 9(g) also requires ‘specifically stat[ing]
the amount of special damages’”198 and, because Governor Newsom did provide
such a statement, his complaint is barred from proceeding under Delaware Superior
Court Civil Rule 9(g).199 Governor Newsom argues that he “was not required to
plead those damages because they are presumed.”200
Under Superior Court Civil Rule 9(g), “[a] pleading . . . which prays for
unliquidated money damages, shall demand damages generally without specifying
the amount, except when items of special damage are claimed, they shall be
specifically stated.”201 As a general rule, “oral defamation is not actionable without
special damages.”202 However, in cases involving slander per se, the claim may be
198 Def. Mot. at 30. 199 Id. 200 Pl. Resp. at 37. 201 Del. Super. Ct. Civ. R. 9(g). 202 Spence, 396 A.2d at 970. 38 established without proof of special damages due to the difficulty in attributing
specific financial loss to the statement.203 “In broad terms, these are statements
which: (1) malign one in a trade, business or profession, (2) impute a crime, (3)
imply that one has a loathsome disease, or (4) impute unchastity to a woman.”204 To
speak critically of someone in a personal capacity does not necessarily constitute
professional malignment.205 But, a broadly circulated personal critique that greatly
impacts the plaintiffs good name and reputation and thereby affects his professional
standing may warrant special damages.206 “[U]nder Delaware law, injury to
reputation is permitted without proof of special damages.”207
Here, FNN speaks about Governor Newsom’s professional career in a critical
manner. As a public official, Governor Newsom has accepted a risk of closer public
scrutiny.208 FNN assails Governor Newsom’s veracity – his personal character.
When a personal critique greatly impacts a plaintiff’s professional standing and
reputation, a plaintiff may proceed without pleading special damages.209 Governor
203 Id. 204 Id. 205 McMahon v. McMahon, 2024 WL 1905462, at *4 (Del. Super. Ct. Apr. 29, 2024). 206 See Stitt v. Lyon, 103 A.2d 332 (Del. Super. Ct. 1954). 207 Gannett Co., Inc. v. Kanga, 750 A.2d 1174, 1184 (Del. 2000). 208 Mosesian, 233 Cal.App.3d at 1696. 209 Gannett Co., Inc., 750 A.2d at 1184. 39 Newsom, alleges that FNN’s statement that he was a liar resulted in reputational
injury,210 and that FNN intended to harm his career politically.211 The complaint
alleges facts reasonably susceptible to this conclusion thus permitting Governor
Newsom to move forward without an allegation of special damages.
III. ATTORNEYS’ FEES
FNN contends that they are entitled to attorneys’ fees under California’s anti-
SLAPP Statute based on Governor Newsom’s withdrawal of his California Unfair
Competition Law claim.212 FNN argues that “Newsom’s decision to abandon his
meritless [Unfair Competition Law] claim makes [it] a ‘prevailing defendant’ under
California’s anti-SLAPP law and entitles [FNN] to a mandatory award of attorneys’
fees it incurred addressing the [Unfair Competition Law] claim.”213 Governor
Newsom, of course, opposes this application.214
California’s anti-SLAPP statute serves “to prevent and deter ‘lawsuits brought
primarily to chill the valid exercise of the constitutional rights of freedom of speech
and petition for the redress of grievances.’”215 “The anti-SLAPP statute provides a
210 Amend. Compl. at 26. 211 Id. ¶ 80. 212 D.I. 17 at 1. 213 Id. at 2. 214 Pl. Resp. at 38. 215 Soukup v. Law Offices of Herbert Hafif, 139 P.3d 30, 42 (Cal. 2006) (cleaned up). 40 ‘procedural remedy to dispose of lawsuits that are brought to chill the valid exercise
of constitutional rights.’”216 The California Supreme Court rejected the idea of the
anti-SLAPP statute as being read as substantive law.217 FNN contends that, if the
Court finds that the California’s anti-SLAPP provision does not apply, then the Court
should address the issue of attorneys’ fees under New York’s anti-SLAPP statute.218
To be sure, Delaware procedural law controls here. Because California and New
York’s anti-SLAPP statutes provide procedural guardrails to litigation, the Court
declines to apply those statutes to the claim Governor Newsom chose to withdraw.
216 Crossroads Investors, L.P. v. Federal National Mortgage Assn., 222 Cal.Rptr.3d 1, 18 (Cal. Ct. App. 2017) (cleaned up). 217 Flatley v. Mauro, 139 P.3d 2, 18 (Cal. 2006). 218 Def. Mot. at 38. 41 CONCLUSION
The Court finds that FNN will not suffer an overwhelming hardship defending
itself in Delaware – the State it has chosen as its corporate home. And, at this stage,
under facts set forth in the amended complaint and upon reasonable inferences drawn
in favor of Governor Newsom, recovery is conceivable even when viewed through
the more discerning lens applied to allegations of defamation of a public official. A
reasonable interpretation of the facts presently before the Court support Governor
Newsom’s claim. And this Court declines to apply California or New York
procedural rules to Delaware litigation. Accordingly, FNN’s motion to dismiss
under Superior Court Civil Rule 12(b)(3) and (b)(6) and its motion for attorneys’
fees are DENIED.
IT IS SO ORDERED.
_______________ _________ Sean P. Lugg, Judge