Schneider v. Warner Bros. Discovery, Inc.

Opinion

Filed 9/10/26 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

DAN SCHNEIDER, B343434

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. 24NNCV01328)

v.

WARNER BROS. DISCOVERY, INC., et al.,

Defendants and Appellants.

APPEAL from an order of the Superior Court of Los Angeles County, Ashfaq G. Chowdhury, Judge. Reversed.

Greenberg Traurig, Vincent H. Chieffo, Alex Linhardt;

Foley Hoag, Michael J. Grygiel, Kelly L. McNamee and Christina N. Hernsdorf; Gibson Dunn & Crutcher, Theodore J. Boutrous, Ilissa Samplin, Zachary C. Freund, and Connor S. Sullivan for Defendants and Appellants.

Jassy Vick Carolan, Jean-Paul Jassy, Kevin Vick; Lisa Zycherman, Mara Gassmann and Claudia Liss-Schultz for the Reporters Committee for Freedom of the Press and the

International Documentary Association as Amici Curiae on behalf of Defendants and Appellants.

Moser Legal and Jana M. Moser; Sullivan & Worcester and Gerry Silver for Plaintiff and Respondent.

‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗

Plaintiff and respondent Dan Schneider is a television producer, creator, and writer, who is associated with a number of children’s television shows airing on the Nickelodeon network from the late 1990’s and 2000’s, including All That, The Amanda Show, Drake & Josh, and iCarly, among others. He is also one of the primary subjects of the documentary Quiet on Set: The Dark Side of Kids TV (Quiet on Set), a five-part documentary series that explores the behind-the-scenes culture of some of Schneider’s shows. Quiet on Set also details incidents of sexual abuse perpetrated by Nickelodeon employees against child actors who worked on these shows. Schneider argues that “through the use of voiceovers, photos, videos, graphics, editing and production,” Quiet on Set implies a false relationship between these subjects and leads a reasonable viewer to inaccurately conclude that Schneider “committed crimes of child sexual abuse.”

Schneider sued Defendants, who are parties that “variously wrote, filmed, produced marketed, broadcast and streamed” Quiet on Set and its trailer, for defamation.1 Defendants filed a special motion to strike Schneider’s sole cause of action under

1 Defendants and appellants are Warner Brothers Discovery, Inc.,

Maxine Productions, Sony Productions, and individuals Mary Robertson and Emma Schwartz (collectively, Defendants), who “wrote, directed, produced and/or edited Quiet on Set and its trailer.”

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California’s statute combatting strategic lawsuits against public policy (SLAPPs). (Code Civ. Proc., § 425.16, subd. (b).)2 The trial court denied Defendants’ motion and Defendants timely appealed.

We reverse, finding that Schneider has not demonstrated a likelihood of success on the merits.

FACTUAL AND PROCEDURAL BACKGROUND Schneider’s complaint arises from Defendants’ creation and distribution of the documentary Quiet on Set. The trailer, advertising the documentary and teasing its contents, began circulating online in February 2024. The trailer lasted approximately two-and-a-half minutes. The documentary itself was presented as five separate episodes; the first four were released on March 17 and 18, 2024, and a fifth episode that, in part, responded to the public’s reaction to the first four episodes, aired on April 7, 2024. Each episode is around 42 minutes, and the documentary has a total running time of around three hours and 30 minutes.

Schneider argues that the totality of the editorial choices made by Defendants imply that he sexually abused children who worked on his television shows. His complaint identified several excerpts from Quiet on Set and its trailer that he asserts contribute to that inference. We will further discuss these specific challenged excerpts, but the crux of Schneider’s argument, as stated in his complaint, is that “the voiceovers and graphics in Quiet on Set and its trailer, juxtaposed or edited with the visual depictions, are purposefully and intentionally

2 All further statutory references are to the Code of Civil

Procedure unless otherwise indicated.

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defamatory in that they falsely and repeatedly state or imply that Schneider is a child sexual abuser and committed crimes in this regard.” Schneider’s Complaint and Defendants’ Anti-SLAPP Motion to Strike Schneider filed his complaint for defamation on May 1, 2024. On July 3, 2024, Defendants filed an anti-SLAPP motion to strike the entirety of Schneider’s complaint. In support, Defendants filed, among other things, time-stamped copies of the trailer and episodes. Defendants argued that these works constituted “ ‘conduct in furtherance of the exercise of . . . the constitutional right of free speech in connection with a public issue or an issue of public interest,’ ” and that Schneider’s complaint was therefore subject to an anti-SLAPP motion to strike, pursuant to section 425.16, subdivision (b)(1). They also argued that Schneider could not demonstrate any probability of success on the merits because the documentary and trailer were not reasonably susceptible to a defamatory meaning. They additionally asserted that Schneider had no evidence of actual malice to establish that Defendants created the work with the knowledge that it was susceptible to this defamatory interpretation, as is required for a defamation case involving a public figure. Finally, they argued that Schneider failed to adequately plead special damages, and that this omission was fatal to his complaint.

Schneider filed an opposition. He did not contest that the complaint arose from activity protected by the anti-SLAPP statute. Instead, he argued that his claim had sufficient merit to prevail, and he detailed the specific elements of the documentary and trailer that he argued implied a defamatory meaning. He

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also asserted that his evidence was sufficient for a factfinder to conclude that Defendants acted with actual malice in their production choices. In response to Defendants’ claim that he failed to sufficiently plead special damages, he contended that this was not a requirement for his claim, but that he had done so, nonetheless.

In support, Schneider submitted a declaration by John Vaccaro, a partner at a public relations firm providing services to Schneider. The Vaccaro declaration included copies of public posts found on various online platforms, including comments posted on the YouTube.com comment section of the trailer, and others published on the social media platform X (formerly Twitter). This declaration also included posts made under an “apology video” that was created by Schneider and posted on his own Facebook page, which responded to the first four Quiet on Set episodes. Schneider relied on these posts as evidence that average viewers did, in fact, infer from the documentary and trailer that he had sexually abused children. Defendants filed evidentiary objections to the Vaccaro declaration, which the trial court overruled. Defendants also filed a reply in support of their anti-SLAPP motion, supported by additional declarations.3

3 Schneider failed to submit a declaration expressly denying that

he had not sexually abused children on his television shows. In light of this failure, Defendants argued that Schneider’s evidence was inadequate because it did not include a declaration “evidencing an essential element of his defamation claim—the falsity of the alleged implication that he is a child molester.” The trial court ultimately considered a conforming copy of Schneider’s late-filed declaration in opposition to the anti-SLAPP motion.

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On November 22, 2024, the trial court denied Defendants’

motion to strike. The trial court recounted the arguments by each side and set forth the two-step process for evaluating an anti-SLAPP motion to strike. First, the moving defendant must make a prima facie showing “ ‘ “that the act or acts of which the plaintiff complains were taken ‘in furtherance of the [defendant]’s right of petition or free speech . . . .’ ” [Citation.]’ [Citation.] If the defendant carries this burden, the plaintiff must then demonstrate its claims have at least ‘ “minimal merit” ’ [Citation].” The trial court noted the parties’ agreement on step one that “[t]here’s no question in this case that Plaintiff’s claims involve free speech.”

Moving to step two, the trial court then found that this was “not a case brought by Schneider on frivolous grounds, simply to harass defendants,” and was therefore “not the type of baseless lawsuit . . . that the anti-SLAPP statute was designed to weed out.” The trial court found that Schneider “argues persuasively that defamation can be implied . . . and how the ordinary viewer understands the trailer and documentary to be defamatory.” The trial court did not provide a detailed analysis of the merits of Schneider’s defamation claim, but concluded that he “carried his burden . . . [and] show[ed] that his claim has at least ‘minimal merit,’ for the purposes of this stage of the anti-SLAPP analysis . . . [and] pointed to [ ] substantial amounts of evidence that could support his theory of implied defamation.”

Defendants timely appealed.

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DISCUSSION

I. The anti-SLAPP framework and our standard of review on appeal California law authorizes a special motion to strike unmeritorious pleadings that have the effect of “ ‘chill[ing] the defendant’s exercise of First Amendment Rights.’ ” (Paul v. Friedman (2002) 95 Cal.App.4th 853, 861.) The Legislature created this procedure, codified at section 425.16, in response to “a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” (§ 425.16, subd. (a).) “Section 425.16 is a procedural remedy designed to eliminate SLAPPs in the early stages of litigation” and is intended to spare defendants the unnecessary expense of litigation and the concomitant chill on speech that fear of such litigation engenders. (Paul, at p. 862.) As such, “[a]nti-SLAPP motions may only target claims ‘arising from any act of [the defendant] in furtherance of the [defendant’s] right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.’ ” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062 (Park).) This is codified in section 425.16, subdivision (e), to include, among other activities, “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.” (§425.16, subd. (e)(3).)

An anti-SLAPP motion to strike proceeds in two steps. “At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them. . . . If the court determines that relief

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is sought based on allegations arising from activity protected by the statute, the second step is reached. There, the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff’s showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is stricken.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 396.) At both steps, the party bearing the burden must only establish a prima facie showing. (Issa v. Applegate (2019) 31 Cal.App.5th 689, 701–702 (Issa).) “ ‘Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to be stricken under the statute.’ ” (Id. at p. 701, quoting Navellier v. Sletten (2002) 29 Cal.4th 82, 89.)

“In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim.” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821; see also Park, supra, 2 Cal.5th at p. 1067 [“We do not, however, weigh the evidence, but accept plaintiff’s submissions as true and consider only whether any contrary evidence from the defendant establishes its entitlement to prevail as a matter of law”].)

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The appellate court’s review of an order granting an anti-

SLAPP motion is de novo. (Park, supra, 2 Cal.5th at p. 1067; see also Mundy v. Lenc (2012) 203 Cal.App.4th 1401, 1408 [“An appellate court reviews an order denying an anti-SLAPP motion from a clean slate”].) However, “[i]f the trial court’s decision denying an anti-SLAPP motion is correct on any theory applicable to the case, we may affirm the order regardless of the correctness of the grounds on which the trial court reached its conclusion.” (Issa, supra, 31 Cal.App.5th at p. 701.)4 It is therefore our job to determine, after an “ ‘independent review of the entire record,’ ” whether Defendants made a threshold showing that Schneider’s claim arose from Defendants’ free speech protected by section 425.16, and, if so, whether Schneider has made a sufficient showing that he is likely to succeed on the merits of his defamation case. (De Havilland v. FX Networks, LLC (2018) 21 Cal.App.5th 845, 856, quoting City of Costa Mesa v. D’Alessio Investments, LLC (2013) 214 Cal.App.4th 358, 371.) II. Analysis A. Protected Speech It is undisputed that the documentary and trailer fall under the categories of speech protected by the anti-SLAPP

4 Parties and amici curiae debate whether the trial court

incorrectly applied the “minimal merit” standard to allow Schneider’s claim to proceed merely upon a showing that it was not frivolous or intended to harass. Regardless of whether the trial court applied the correct standard, this court may affirm the denial of the motion to strike if the court was correct in its ultimate conclusion. (Balzaga v. Fox News Network, LLC (2009) 173 Cal.App.4th 1325, 1336 (Balzaga) [“We thus review the trial court’s ruling and not its rationale”].)

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statute. (§ 425.16, subd. (e).) The trial court found that step one had been satisfied and Schneider does not challenge this finding on appeal.

B. Likelihood of Success on the Merits At the second step, Schneider must “make a prima facie showing of facts that, if proven, would support a judgment in his favor” on his sole cause of action for defamation per se. (Issa, supra, 31 Cal.App.5th at pp. 701–702.) “ ‘The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.’ ” (Id. at p. 702, quoting Taus v. Loftus (2007) 40 Cal.4th 683, 720.) In addition, because Schneider is a public figure, “he must also demonstrate, by clear and convincing evidence, that the challenged statements were made with actual malice.” (Id. at p. 703.)

Schneider’s complaint does not allege that any specific factual statement regarding him in Quiet on Set is false. That Defendants’ documentary is not alleged to contain express falsities is not, however, fatal to a claim of defamation. “California law recognizes that a defamatory statement can be either ‘expressly stated or implied.’ ” (Manzari v. Associated Newspapers Ltd. (9th Cir. 2016) 830 F.3d 881, 889 (Manzari), quoting Forsher v. Bugliosi (1980) 26 Cal.3d 792, 803 (Forsher).) “ ‘ “[I]f the defendant juxtaposes [a] series of facts so as to imply a defamatory connection between them, or [otherwise] creates a defamatory implication . . . he may be held responsible for the defamatory implication, . . . even though the particular facts are correct.” [Citation.]’ [Citation.] Therefore, ‘it is the defamatory implication—not the underlying assertions giving rise to the implication—which must be examined to discern whether the

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statements are entitled to full constitutional protection.’ ” (Weller v. American Broadcasting Companies, Inc. (1991) 232 Cal.App.3d 991, 1003, fn. 10.)

Because Schneider relies on a theory of defamation by implication, he “must demonstrate that (1) his . . . interpretation of the statement is reasonable; (2) the implication or implications to be drawn convey defamatory facts, not opinions; (3) the challenged implications are not ‘ “substantially true;” ’ and (4) the identified reasonable implications could also be reasonably deemed defamatory.” (Issa, supra, 31 Cal.App.5th at p. 707.) Schneider claims that a reasonable implication of Defendants’ documentary is that Schneider sexually abused children.

Defendants do not argue that characterization as a child sexual predator is not defamatory.5 Nor do the parties dispute whether this characterization is “substantially true.” Schneider

5 Defendants argue that Schneider’s claim is not defamatory per

se because it relies on implication. Defamation per se encompasses defamation by implication, provided that it is unnecessary to rely on extrinsic information to discern the defamatory meaning of the offending statement. (See McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 112 [“A statement can also be libelous per se if it contains a charge by implication from the language employed by the speaker and a listener could understand the defamatory meaning without the necessity of knowing extrinsic explanatory matter”].) Defendants do not argue that extrinsic information is required to understand why labeling Schneider as one who molests children “exposes [him] to hatred, contempt, ridicule, or . . . has a tendency to injure him in his occupation.” (Civ. Code, § 45; see also Grenier v. Taylor (2015) 234 Cal.App.4th 471, 486 [statements that plaintiff molested children were factual statements alleging criminal conduct and are defamatory on their face].)

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denies engaging in such conduct and, while Defendants stand by allegations of other forms of bad behavior made in Quiet on Set, they do not advance the argument that child sexual abuse is a substantially true description of Schneider’s conduct. Additionally, Defendants do not argue that characterizing Schneider as someone who has sexually abused children is merely a matter of opinion and not a fact capable of being disproven. Thus, the only element of Schneider’s defamation by implication claim that is disputed by Defendants is whether their work is reasonably subject to the meaning Schneider contends.

On appeal, we are tasked with determining whether Quiet on Set and its trailer are reasonably subject to Schneider’s interpretation as a matter of law. If the court finds that Defendants’ work is “ ‘susceptible of both an innocent and libelous meaning,’ ” then Schneider has satisfied the minimal merit threshold and the motion to strike must be denied. (Edward v. Ellis (2021) 72 Cal.App.5th 780, 790 (Edward), quoting Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 385.)

i. Evidentiary issues Before addressing whether Schneider satisfied his burden and demonstrated a probability of success on the merits, we must determine what evidence may properly be considered. Through the Vaccaro declaration, Schneider introduced statements found online that were purportedly made by viewers of the documentary or its trailer reflecting their belief that Schneider had engaged in child sexual abuse. Schneider argues that these online postings should be considered as evidence that viewers did, in fact, attribute a defamatory meaning to Defendants’ work, and thereby support his assertion that Quiet on Set and its trailer

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are susceptible to a defamatory implication as a matter of law. Defendants objected to the Vaccaro declaration on various grounds, including lack of foundation and relevance, which were overruled by the trial court. Defendants renew their arguments that these statements taken from various social media platforms should not be considered. We agree.

We consider the trial court’s evidentiary ruling for abuse of discretion. (Bennett v. Superior Court (2019) 39 Cal.App.5th 862, 876.) “A trial court ruling that rests on an error of law is an abuse of discretion.” (Ibid.)

The evidence that Schneider seeks to have the court consider are statements in newspapers and Internet postings such as: “Dan Schneider needs to be in prison IMMEDIATELY,” “Dan Schneider was the Harvey Weinstein of Nickelodeon,” and “We owe [Amanda Bynes] and [Drake Bell] an apology and our support. May they find peace and may the abusive [Nickelodeon] executives and child molesters be brought to justice. #DanSchneider #quietonset,” and a caption referencing Schneider as an “alleged assaulter.” These postings were made on various platforms, under individuals’ handles, some of which appear to be a first and last name, while others we must hope are pseudonyms, such as “MrAverageViewer,” “kermittthefrog2311” and “Cowbells.” He seeks to introduce these statements as evidence that “viewers understood Defendants’ statements or implications . . . to mean that Schneider in fact committed crimes of child sexual abuse.”

Defendants argue that the third-party statements should not be considered because “[t]he ‘dispositive question’ in [an implied defamation] case is ‘whether a reasonable fact finder could conclude the published statement declares or implies a

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provably false assertion of fact.’ This is ordinarily a question of law for the court.” (Edward, supra, 72 Cal.App.5th at p. 790, quoting Franklin v. Dynamic Details, Inc., supra, 116 Cal.App.4th at p. 385; Couch v. San Juan Unified School District (1995) 33 Cal.App.4th 1491, 1500 (Couch) [“Whether published material is reasonably susceptible of an interpretation which implies a provably false assertion of fact—the dispositive question in a defamation action—is a question of law for the court”].) Whether there is evidence that selected readers did adopt the interpretation Schneider advances, Defendants argue, is of no relevance to the court’s analysis.

Prior courts have agreed. In San Francisco Bay Guardian, Inc. v. Superior Court (1993) 17 Cal.App.4th 655, 660 (S.F. Bay Guardian), the court found that declarations by individuals who had read the offending newspaper article and did not recognize it as a parody did “not raise a question of fact as to the view of the average reader.” The court reasoned that the “question is not one that is to be answered by taking a poll of readers but is to be answered by considering the entire context in which the offending material appears.” (Ibid.; see also Couch, supra, 33 Cal.App.4th at p. 1503, fn. 9 [allegations that other readers interpreted the offending newspaper section in the same manner as plaintiff were insufficient to raise issue of fact because the viewpoint of the average reader cannot be ascertained in this way]; Polygram Records, Inc. v. Superior Court (1985) 170 Cal.App.3d 543, 556, fn. 15 [denying request to amend complaint to allege that individuals understood defendant’s statement to refer to plaintiff’s product where the court found that, as a matter of law, the statement could not be taken seriously].)

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In support of the contrary position, Schneider cites Gaprindashvili v. Netflix, Inc. (C.D. Cal., Jan. 27, 2022, No. 2:21- cv-07408-VAP-SKx) 2022 WL 363537 (Gaprindashvili), in which a district court denied an anti-SLAPP motion where the petitioner, a trailblazing female chess champion, alleged that the remark in defendant’s film that she “ ‘has never faced men [at chess]’ ” was a false statement injurious to her reputation. (Id. at p. *7, italics and bold omitted.) Relying solely on the words used by defendants and their surrounding context in the film, the court determined that “[a]n average viewer easily could interpret the Line . . . as ‘disparaging the accomplishments of Plaintiff’ . . . [and that] such a falsehood ‘constitutes an injury to reputation.’ ” (Id. at p. *7, quoting Nguyen-Lam v. Cao (2009) 171 Cal.App.4th 858, 867.) The court also acknowledged that evidence that “viewers did in fact interpret the Line as defamatory . . . though not dispositive, supports the allegation that a ‘reasonable’ viewer would believe the line to be defamatory.” (Id. at p. *10.) However, evidence of the public’s response only “support[ed]” the finding the trial court already made that the challenged statement was susceptible to the claimed defamatory meaning; the trial court did not rely on evidence of the public’s response to make that finding.6

6 While courts have at times acknowledged third party

statements that are consistent with their own conclusion that a work is susceptible to a defamatory interpretation, it is the court’s own analysis as a matter of law that controls. (See, e.g., Gaprindashvili, supra, 2022 WL 363537, at p. *7.) Further, reference to social media commentary, even when invoked to demonstrate the correctness of the court’s own conclusion, must be undertaken with extreme caution, given the inherent

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Schneider cites additional cases where courts purportedly relied on evidence of the public’s reception, but those are equally unavailing. For instance, Schneider cites Montandon v. Triangle Publications, Inc (1975) 45 Cal.App.3d 938, where the court affirmed a jury verdict after trial finding that the defendant magazine published a description of socialite and author Pat Montanton that implied that she was a prostitute. The court in Montandon recounted the trial testimony, which included evidence that people, including fans of Ms. Montandon, interpreted the magazine’s statement to have that defamatory meaning. (Id. at pp. 943–944.) Schneider also cites another district court case, Denison Powerlifting Inc. v. Dorsey (C.D. Cal., Feb. 10, 2025, No. 8:23-cv-00744-JVS-KES) 2025 WL 1011783, where the trial court considered public comments on a video posted by the defendant on social media in opposition to defendant’s summary judgment motion.

In neither case did the defendant argue that the public’s response was irrelevant; however, such a challenge would have

unreliability of such content. (See, e.g., State v. Allcock (Vt. 2020) 237 A.3d 648, 654 [observing that Facebook removed over 3.3 billion fake accounts in 2018 and five billion fake accounts in 2019]; see also People v. Ware (2022) 14 Cal. 5th 151, 174 [recognizing that social media postings are “expression aimed at a particular audience. . . [and] may include an element of performance”]; Summit Bank v. Rogers (2012) 206 Cal.App.4th 669, 696–697 [“ ‘[A]ny reader familiar with the culture of . . . most electronic bulletin boards . . . would know that board culture encourages discussion participants to play fast and loose with facts. . . . Indeed, the very fact that most of the posters remain anonymous, or pseudonymous, is a cue to discount their statements accordingly.’ [Citation.]”].)

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been unavailing because both cases involved the sufficiency of the evidence for a jury to conclude that defamation had occurred. California courts have long recognized that “[w]hether or not the [statement] is reasonably susceptible of this interpretation is a question for the court and, if so, whether or not it was so understood is a question for the jury.” MacLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536, 546; Balla v. Hall (2021) 59 Cal.App.5th 652, 686, quoting MacLeod, at p. 546 [same]; John Doe 2 v. Superior Court (2016) 1 Cal.App.5th 1300, 1312 [“ ‘[I]t is a question of law for the court whether a challenged statement is reasonably susceptible of [a defamatory] interpretation . . . . If that question is answered in the affirmative, the jury may be called upon to determine whether such an interpretation was in fact conveyed’ ”].) This is an important distinction, as the relevant question at the summary judgment and trial stage is whether the evidence supported—or could support—a jury’s conclusion that the challenged statement was in fact interpreted in a defamatory manner. Schneider’s cases are therefore inapposite.7 We agree with Defendants that the statements made by members of the public on various Internet sites are not relevant

7 Schneider additionally references Harvey v. Netflix (C.D. Cal.,

Sept. 27, 2024, No. 2:24-cv-04744-RGK-AJR) 2024 WL 4536639, *6, in which the trial court denied defendant’s anti-SLAPP motion finding that a reasonable person could have identified plaintiff as the subject of defendant’s story. Contrary to Schneider’s characterization, the trial court relied on its own evaluation of the facts to conclude that there were “strong and specific” similarities that would have allowed the public to identify plaintiff. (Ibid.)

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to the court’s determination whether the work is susceptible to a defamatory interpretation as a matter of law.

ii. Defamatory Elements in Quiet On Set “In examining whether a statement is false and defamatory, we look to the totality of the circumstances, which includes not only the words of the identified defamatory statement, but the context in which the statement was made. [Citation.] ‘[A] defamatory meaning must be found, if at all, in a reading of the publication as a whole.’ [Citation.] ‘Defamation actions cannot be based on snippets taken out of context.’ ” (Issa, supra, 31 Cal.App.5th at pp. 713–714.)

Schneider contends that, despite this directive, Defendants’

trailer and documentary should be viewed and analyzed as separate works. This approach has been generally rejected by courts, with our Supreme Court cautioning that “ ‘ “the publication in question must be considered in its entirety; ‘[i]t may not be divided into segments and each portion treated as a separate unit.’ ” ’ ” (Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 261.) Focusing on a small piece of the offending work also impedes the court’s ability to consider how an average viewer would interpret the work, given that an average audience member would be more likely to receive the offending statements within the context of the whole. (See S.F. Bay Guardian, supra, 17 Cal.App.4th at p. 660 [“[o]nly a viewer that read only the fake letter . . . and looked at nothing else could miss the joke in this case, and that is not the average reader”].)

However, to the extent courts have recognized that the audience is likely to receive something less than the whole, they have adjusted their contextual analysis accordingly. For instance, in Manzari, supra, 830 F.3d at p. 890, the defendant

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newspaper argued that there could be no implied defamation where a large photo of the petitioner appeared under the headline “ ‘Porn industry shuts down after “female performer” tests positive for HIV’ ” because the article, when read in full, was “logically inconsistent with the inference that the actress in question was [petitioner].” In rejecting the newspaper’s argument, the Ninth Circuit noted that some viewers received the defamatory content—the headline and photo—independently from the article as it “spread rapidly” online, “truncated with the headline followed directly by [petitioner’s] photograph . . . but without the rest of the article to provide any further context for the image.” (Ibid.)

Similarly, in Kaelin v. Globe Communications Corp. (9th Cir. 1998) 162 F.3d 1036, 1041, the Ninth Circuit reversed an order granting summary judgment in favor of the National Enquirer magazine while acknowledging that its allegedly defamatory headline accompanied an article that was entirely true. It held that the headline “COPS THINK KATO DID IT!” reasonably implied that the plaintiff, “Kato” Kaelin, was a suspect in the murder of Nicole Brown Simpson and Ronald Goldman. (Id. at p. 1037.) Even though the substantive article clarified that he was only suspected of perjury, the court observed that the corresponding story, 17 pages from the headline, “was too far removed from the cover headline to have the salutary effect [defendant] claims.” (Id. at p. 1041.) It further recognized that the magazine’s audience consisted of both its “ ‘ordinary reader . . . as well as those who merely glance at the headlines while waiting at the supermarket checkout counter.’ ” (Ibid., quoting Eastwood v. National Enquirer, Inc. (9th Cir. 1997) 123 F.3d 1249, 1256.) Thus, while the cases are consistent that the

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allegedly defamatory elements of a work must be viewed in context, they also recognize that, when the average audience member may receive the defamatory elements divorced from the entire work, the analysis must reflect that reality.

We believe it is appropriate, therefore, to independently analyze the Quiet on Set trailer, which was published and distributed separately from the Quiet on Set five-part documentary, and that doing so accurately reflects how an “average viewer” received Defendants’ work. The trailer was placed “into broadcast circulation” on February 8, 2024, while the documentary episodes began airing over a month later, on March 17, 2024. The documentary aired on the ID Network, and was simultaneously made available on HBO’s streaming platform. While the record does not describe how the trailer was circulated, it does reflect that it was, at minimum, posted on the ID Network’s YouTube page. Moreover, the purpose of a trailer is to advertise a film and is intended to reach a broader audience than those who will ultimately elect to watch the film in its entirety. Many of those who view the trailer may therefore have no interest in viewing the three-plus hour documentary, and the context provided by the entire work cannot be imputed to the viewers of the trailer. We therefore agree that under these circumstances, it is proper to determine whether the trailer—in its entirety, but standing apart from the five-part feature it teased—is reasonably subject to the implied defamatory meaning asserted by Schneider.

We now turn to a detailed description of Quiet on Set and its trailer, including the specific elements that Schneider

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contends support a defamatory interpretation to determine whether either is reasonably subject to a defamatory meaning.8 a. Additional factual background Quiet on Set Trailer Schneider identifies three specific excerpts from the Quiet on Set trailer that he asserts are defamatory by implication. First, he observes that after mentioning Schneider and his impact on both children’s television and the careers of several well-known child actors, the documentary inserts the logo of Investigation Discovery (ID Network), the cable network that produced Quiet on Set and, Schneider contends, is “dedicated to true crime documentaries.”

The second contested excerpt is a voiceover stating that “[w]orking for Dan [Schneider] was like being in an abusive relationship. Dan’s treatment of people on his shows was an open secret,” followed closely by another voice asking “[h]ow safe can any kids be in that environment?” The “abusive relationship” statement is accompanied by images of adult women apparently on a television set. It is immediately followed by an additional

8 While the parties dispute the reasonable interpretation of the

material, they do not dispute that the exhibits provided to the trial court reflect a true and correct copy of the works that are the subject of this controversy. To the extent the parties’ descriptions of these works differ, for instance with respect to the sequencing of images, the court relies upon its own independent review of the exhibits. The court has therefore adopted Schneider’s factual allegations in this recitation unless, after its own review, it has concluded that the record evidence cannot support Schneider’s description. (Barker v. Fox & Associates (2015) 240 Cal.App.4th 333, 348 [granting anti-SLAPP motion after review of emails that did not contain the statements as characterized by the plaintiff].)

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voice-over from a woman stating that her “lawyer filed complaints; gender discrimination, hostile work environment, harassment” accompanied by images of what appears to be a complaint with the words “denied equal pay” and “sexually hostile work environment” highlighted. A few seconds later, the question is posed regarding kids’ safety, with the full statement: “How safe can any kids be in that environment. There would be even bigger problems down the line with actual pedophiles on set.”

The third allegedly defamatory element in this trailer is the statement that “[t]here would be even bigger problems down the line with actual pedophiles on set,” combined with the observation that, to this point, Schneider remained the only person mentioned by name. Along with this, he identifies the trailer’s description of “horrific sexual crimes against children” shortly after this statement as further support for a defamatory interpretation. With respect to what is actually shown in the trailer, immediately after the statement regarding “actual pedophiles on set,” the trailer cuts to photographs of three men with a voiceover that states: “These are three predators who worked at Nickelodeon, all in a short amount of time.” None of the individuals depicted is Schneider. Schneider’s name is also not mentioned in the trailer at any point after this reference to predators. The reference to the crimes against children comes after displaying the three men’s images, and while the criminal acts are being discussed, there is an excerpt of what appears to be a legal document with the words “Peck coached the victim” highlighted.

Finally, at the close of the trailer, a former child actor is asked if he had ever told his story before, and the trailer ends

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with the question unanswered. According to Schneider, by not explicitly providing the identity of the child abuser “the implication remains that it was Schneider who perpetrated the crime.” Quiet on Set: Episode 1 The first element in this episode that Schneider claims supports a defamatory inference is the opening graphic, which states, “This series investigates the abuses experienced by children from the adults they were expected to trust. Viewer discretion is advised.” The second is an approximately oneminute montage of clips regarding Schneider’s success, including his receipt of a lifetime achievement award and references to him as a “golden boy” who “shaped children’s entertainment.” This brief segment ends with a voiceover warning that “if you were a child of the ‘90s, this is going to ruin that for you.” The episode then displays a series of photos of Schneider on a television show set, along with two photos of Schneider with the same child actress sitting close together—one with his hand on her back— and clips of interviewees interspliced with short clips of various Schneider-produced shows. These images are accompanied by voiceovers from various individuals stating that “he made them do things that are very weird” and that there were “all these setups that referenced porn.” Together, Schneider argues, this creates the inference that he was “a child sexual abuser.”

This episode then chronicles some of Schneider’s on-set behavior, both positive and negative. This includes commentary from individuals characterizing Schneider as a “self-deprecating and really funny boss,” as a “mentor” to the young actors, and as a “forward think[er]” in his support of strong female leads. It also includes a significant discussion of, what Defendants

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summarized as, the “hostile work environment two adult female writers on The Amanda Show endured, including allegations of unequal pay as well as a graphic portrayal of an incident in which Schneider coerced one of the female writers to act like she was being sodomized while leaning over the table in the writers’ room in front of Schneider and her fellow writers.” Schneider does not allege that any of the content in this approximately 40- minute stretch supports a defamatory implication.

The third element that Schneider argues supports a defamatory inference is the concluding minute of this episode. It begins with a voiceover saying: “How safe can any kids be in that environment if that’s how the adult women are being treated behind the scenes? . . . . But there would be even bigger problems down the line with actual pedophiles on set.” The audio then transitions to news report stating: “Van Nuys division officers have arrested a suspected child predator charged with kissing and touching a nine-year-old girl, but officers believe there may be more victims.” There is no name or image of a suspect to accompany this statement, but rather a television screen with black-and-white static. Quiet on Set: Episode 2 Schneider identified two elements from this episode as defamatory. First, he argues that after “introducing [Jason] Handy, who was ultimately convicted of various felony sex crimes against children,” the documentary “immediately and inexplicably cuts to an image [showing a large number of apparent cast and crew members] that centers upon and zooms in toward Schneider, not Handy.” As alleged by Schneider, this framing purportedly occurs shortly after “a graphic description of Handy’s misconduct” while the victim’s mother states, “[h]e had

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also told this young girl, I can get you on other shows.” Schneider argues that “without explaining who the speaker’s reference to ‘he’ was . . . the viewer is left to conclude that, like Handy, Schneider used his position to facilitate child sexual abuse.”

Schneider’s description of this segment does not exactly correspond with what is displayed in the episode. A review of this section of the documentary reflects that approximately six minutes of this episode are focused on Handy. Schneider is not mentioned at any time during this six-minute segment. This section begins with Handy’s introduction, which is provided through a television news clip showing his photo and full name under the heading “child molester” and a statement that he had been arrested. After a discussion of some of Handy’s actions, the segment discusses his criminal prosecution. Immediately prior to introducing the cast and crew photo that includes both Schneider and Handy, an interviewee recounts a specific incident involving a young victim. The full dialogue is as follows:

“[Interviewee 1:] Jason Handy meets another girl on a different Nickelodeon show, Cousin Skeeter. She was just a guest star on the show, they became friendly, and on one day in the spring or summer of 2000, when the girl was nine years old, she and Jason Handy were playing video games in her bedroom. He kissed her twice and on the second kiss, he tried to force his tongue inside her mouth. She backed away feeling uncomfortable about the kisses. He told her not to tell her mother about the kisses.

“[Interviewee 2:] He had also told this young girl ‘I can get you on other shows.’ So, there was that promise of he’s going to take her far in this business.

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“[Interviewee 1:] Ultimately, Jason was sentenced to six years on two felony counts and one misdemeanor….”

During this statement by Interviewee 2, the crew photo featuring both Handy and Schneider (along with numerous others) appears, but when the voiceover states, “he’s going to take her far,” the image zooms in on Handy, not Schneider, as Schneider alleged. Immediately following this statement, the image changes to a mug shot of Handy when describing his criminal sentence.

Another element in this episode that Schneider alleges is defamatory is the statement that another abuser, Brian Peck, “ ‘worked closely with Dan as this dialogue coach’ and that Peck was ‘very much one of the cogs in the Dan Schneider machine.’ ” Schneider also points to the documentary’s display of a photo featuring him hugging a female child actor, Giovonnie Samuels, which then pans to a similar photo of Samuels hugging abuser Peck. The referenced photos appear on the same page of a scrapbook introduced by Samuels earlier in the documentary.

To give context to this excerpt from Episode 2, this imagery occurs while former child actors who worked with Peck discussed how they learned of Peck’s abuse and arrest. One of the actors, Kyle Sullivan, recounted that at the end of a table read for their show, shortly after Peck’s arrest, “Dan says ‘would it be possible for the parents to leave the room for a moment so that our friends can talk to the kids.” The “friends,” who Sullivan believed were lawyers, told them that Peck would no longer be on set and asked if “anyone ha[s] anything they would like to say”—an interaction that Sullivan states left him very uncomfortable. Regarding this same incident, Samuels states that, “thinking about it now, as an

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adult, and having the parents leave the room, that was a little sus[pect].” Sullivan further states, “that experience was really disillusioning, and left a lasting impact on me in terms of how the world works.” It is after this discussion that the episode features the aforementioned photos of both Peck and Schneider, along with Samuels’s voiceover stating: “We go through enough as child actors, and for us to not feel like we have a voice, that’s worse, ‘cause you don’t know who you’re supposed to trust.” Sullivan then states, “after this like, very awkward pregnant pause, the lawyerly fellows were like ‘okay, thank you very much!’ and then Dan was like ‘Alright!’ and everyone got up and that was that.” Quiet on Set: Episode 3 Schneider does not specifically identify any portion of this episode as allegedly defamatory; however, this episode provides additional relevant context for the allegedly defamatory elements. This episode focuses on the sexual abuse experienced by a single former child actor that had not been disclosed publicly, as well as the institutional response on set. The perpetrator of this abuse, Brian Peck, is specifically identified by name and shown in accompanying images. Schneider is mentioned at various points in this episode, including statements from the abuse survivor that he was “the only official at Nickelodeon who stood by [the victim] at this time.” Quiet on Set: Episode 4 Schneider also does not identify any element of this episode as false or allegedly defamatory, but it provides further relevant context. This episode continues to discuss the dynamics between Schneider and others on the set, and examines specific skits and recurring themes in Schneider’s shows that included sexual innuendo or sexual scenarios involving minor actors. This

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includes a scene involving then child actor, Jamie Lynn Spears, and a “ ‘goop pop’ ” that was made to squirt onto Spears’s face. A former child actor explained “she had overheard one of the boys on set call [the imagery] . . . a ‘cum shot.’ ” After discussing similar examples, this episode includes a voiceover explaining that “an internal Nickelodeon investigation ‘did not find any evidence of inappropriate sexual behavior, [or] inappropriate relationships with children, but it did find evidence of [Schneider] being abusive to others in the workplace.’ ” Quiet on Set: Episode 5 Schneider identifies one element in the concluding minutes of the final episode as defamatory. This episode includes an interview with Shane Lyons, a former child actor from Schneider’s show All That. Lyons’s interview segment lasts approximately five minutes, and he begins by talking about his positive experience as a young actor until his contract was not renewed. He also speaks generally about the experience of child actors transitioning out of professional acting. The interviewer then asks Lyons why he came forward. Lyons responds by discussing his reaction to learning the details of Peck’s sexual abuses via the earlier episodes of Quiet on Set, and discusses his own interactions with Peck, which Lyons alleges included “passes” and inappropriate sexual references. The interviewer asks what on-set protections he would recommend based on his experiences. Lyons responds:

“So, updating the law first and foremost, so that no individual who is a convicted child molester can ever get on a Hollywood set again. And currently, there is a loophole in the law that as long as there is a guardian or a parent omnipresent on the set, they don’t have to hire people who go through a

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background check. And I think more broadly, when you have a cult of personality in any work environment, inevitably it’s ripe for toxicity. We get into their sphere, and their orbit, and no one wants to disrupt what is happening above or below.”

The element that Schneider claims is defamatory is the display of a photo of Schneider on a television set that appears when Lyons says, “cult of personality,” and is removed after “toxicity.”

b. Defamation Analysis

i. Trailer

As detailed above, Schneider identifies specific elements of the trailer that he contends imply that he sexually abused children. The first is the display of the ID Network logo and the tag line “True Crime Event” shortly after the trailer introduces Schneider and his impact on children’s television. The second element is a voiceover likening working for him to being in an “abusive relationship.” This statement is accompanied by images of adult women, references to filing a complaint for workplace discrimination and harassment and images of a legal document reflecting such allegations. A few moments later, the question is posed: “How safe can any kids be in that environment. There would be even bigger problems down the line with actual pedophiles on set.” After this statement, the trailer cuts to photographs of three men with a voiceover that states: “These are three predators who worked at Nickelodeon, all in a short amount of time,” followed by a description of some of the crimes committed, while the name of one of the perpetrators appears on screen. The trailer ends with an unidentified individual being asked if they had ever told their story before, and no answer is given. Schneider contends that because he was the only

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individual explicitly named, it implies “that it was Schneider who perpetrated the crime.”

Ample case law has made clear that “ ‘it is not the literal truth or falsity of each word or detail used in a statement which determines whether or not it is defamatory; rather, the determinative question is whether the “gist or sting” of the statement is true or false, benign or defamatory, in substance.’ ” (Issa, supra, 31 Cal.App.5th at p. 702, quoting Ringler Associates Inc. v. Maryland Casualty Co. (2000) 80 Cal.App.4th 1165, 1181– 1182.) Nonetheless, we cannot agree with Schneider that a reasonable viewer could understand that the “gist” of this trailer is that Schneider sexually abused children.

It is important to note that while we are not permitted to resolve factual disputes, we are equally required to reject the plaintiff’s allegations if the defendant’s evidence has “ ‘ “defeated that submitted by the plaintiff as a matter of law.” ’ ” (Issa, supra, 31 Cal.App.5th at p. 701.) To the extent that Schneider’s description does not match the undisputed content of Quiet on Set and its trailer we cannot credit Schneider’s description as evidence that could prevail at trial to defeat Defendants’ motion. On this point, Schneider’s description does differ in ways that directly affect the totality of the circumstances analysis. For instance, while Schneider contends that, by the end of the trailer “only Schneider’s name and likeness [were] offered,” this is not an accurate statement of what the trailer shows. Rather, by one minute and 13 seconds into the trailer, it displays a photo of three men, with the voiceover: “These are three predators who worked at Nickelodeon, all in a short amount of time.” And, contrary to Schneider’s description, Peck’s name is displayed onscreen, highlighted on what appears to be a legal document, as

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the abusive conduct is described. Schneider, on the contrary, is not mentioned at all in the trailer after it segues into a discussion of child abuse.

Schneider’s specific claim is that the trailer implies that he has sexually abused children, and the court has to evaluate the allegedly defamatory elements to determine if they are susceptible to that specific interpretation. If we consider all of the allegedly defamatory components cited by Schneider, along with the context in which they occurred—i.e., the display of the ID Network and “true crime” tag line, mention of an “abusive relationship” paired with dialogue and images referencing an adult woman’s claim of workplace harassment, a reference to pedophiles on set coupled with the images of three men expressly identified as “predators” (none of whom are Schneider), and the description of incidents of child sexual abuse while displaying Peck’s name although not audibly naming him as the abuser—we cannot find that they reasonably permit the implication Schneider sexually abused children. Scheider’s interpretation is simply not “ ‘the meaning that people of average intelligence and understanding would give it.’ ” (Balzaga, supra, 173 Cal.App.4th at p. 1339, quoting Ramsey v. Fox News Network (D. Colo. 2005) 351 F.Supp.2d 1145, 1151.)

ii. Quiet on Set five-episode documentary We similarly cannot find that the elements Schneider cites, scattered throughout Defendants’ three-and-a-half-hour documentary, can reasonably support the defamatory implication that he is a child sexual predator. The limited question for this court is not whether the Defendants’ work states or implies that Schneider was a bad boss, created a toxic workplace, produced age-inappropriate scripts, or even engaged in inappropriate

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sexual conduct with adult employees; it is whether the documentary is reasonably subject to the interpretation that Schneider sexually abused children. We conclude that Quiet on Set “neither expressly nor by fair implication” charges Schneider with child sexual abuse. (Forsher, supra, 26 Cal.3d at p. 805.)

Schneider identified various statements and images across three of the five episodes of Quiet on Set that he asserts have a defamatory implication. This begins, he alleges, by displaying a content warning before the first episode, advising viewer discretion because “[t]his series investigates the abuses experienced by children from the adults they were expected to trust.” He then points to a montage early in the first episode that shows clips of Schneider’s successes and ends with a voiceover warning the viewer that “if you were a child of the ‘90s,” this documentary would “ruin” that for them. It also shows two images of Schneider with a child actress. The next 40 minutes focus on allegations of workplace sexual harassment and discrimination, and contrast Schneider’s treatment of female staff with his work seemingly advancing progressive female characters. In the concluding minute of this episode, a voiceover asks, “How safe can any kids be in that environment if that’s how the adult women are being treated behind the scenes? But there would be even bigger problems down the line with actual pedophiles on set.” This is followed by a clip from a news report stating that Van Nuys police arrested a suspected child predator, but it does not include a name or image.

The second episode continues the discussion of the suspected child predator, who is identified by name and accompanying image as Jason Handy, with the caption “child molester.” While Handy and his conduct are discussed over the

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next approximately six minutes, there is no mention of Schneider. There is also a crew photo that includes dozens of people, including both Handy and Schneider, that appears when the mother of one of Handy’s victims explains that her daughter was told that “he” could get her on other shows. This ultimately zooms in on Handy and transitions to Handy’s mugshot, stating that he was convicted and sentenced to six years.

Schneider additionally claims that the manner in which he is incorporated into the discussion of Brian Peck, the other convicted pedophile identified by name and image, also contributes to this false implication. He states that Defendants “exaggerate[d]” the relationship between the two by describing Peck, as working “closely” with Schneider as the dialogue coach and as one of the “cogs” in Schneider’s machine. After a former child actor describes Peck’s abuse, other former child actors on the same set discuss how they experienced the workplace response to the revelation of that abuse. They recount a meeting in which Schneider asked the children’s parents to leave the room while unknown adults—whom the children understood to be attorneys—disclosed that Peck would not be returning to the set and asked if they had anything to disclose. After none of the child actors spoke up, Schneider said, “Alright!” and the meeting was concluded. The former actors stated that they now understand that asking their parents to leave the room was a “suspect” request, and reflected on that moment as leaving “a lasting impact” that left them disillusioned about the television industry and wondering who they could trust. During this discussion, the screen shows two photos on a scrapbook page— one with Schneider hugging a child actress and another with

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Peck hugging the same actress. The screen first focuses more on the photo with Schneider and then pans to the image with Peck.

There are two intervening episodes that Schneider does not claim contain potentially defamatory material. Episode three extensively discusses Peck’s sexual abuse of a single child actor. Episode four discusses various skits that child actors recounted as recognizing either now or at the time as including sexual innuendo that they believe was inappropriate for a show directed at children. This episode also included an explicit disclaimer that “an internal Nickelodeon investigation ‘did not find any evidence of inappropriate sexual behavior, [or] inappropriate relationships with children, but it did find evidence of [Schneider] being abusive to others in the workplace.’ ”

The series concludes with episode five, which includes, among other things, a discussion of policy suggestions to prevent future harm. During this segment, the interviewer asks a former child actor what on-set protections he would implement, and he responds that they should “updat[e] the law first and foremost, so that no individual who is a convicted child molester can ever get on a Hollywood set again. . . . And I think more broadly, when you have a cult of personality in any work environment, inevitably it’s ripe for toxicity . . . and no one wants to disrupt what is happening above or below.” Schneider argues that displaying an on-set photo of Schneider during the excerpt: “cult of personality in any work environment, inevitably it’s ripe for toxicity” implies that he “is a convicted child molester” or “aid[ed] and abett[ed]” the crimes of other child molesters.

The documentary clearly distinguishes between the lamentable conduct that its participants attribute to Schneider— gender discrimination, harassment, toxic workplace behavior,

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and inappropriate sexual innuendo—and the child sexual abuse explicitly attributed to three named individuals, two of whom are discussed at length.9 Quiet on Set also affirmatively states that Schneider’s employer investigated his conduct and, while it confirmed some inappropriate behavior, it found no evidence of child sexual abuse. Schneider’s attempt to find an alternative meaning than what is expressly stated in the documentary is unavailing.

Forsher, supra, 26 Cal.3d at pages 805–806, in which the California Supreme Court rejected a similarly strained reading of the defendant’s book, is instructive. Plaintiff claimed that the author’s book, Helter-Skelter, implied that he was an accomplice to the murder of Manson Family attorney Ronald Hughes. (Id. at p. 807.) The book recounted the disappearance of Hughes, noting that Hughes had traveled for a day with the plaintiff, James, and his associate, Lauren, before parting ways. (Id. at p. 797.) Another set of witnesses reported seeing Hughes alive and well the next day. (Ibid.) The book noted that, due to this later reported sighting of Hughes, the plaintiff was “ ‘not polygraphed and [his] story was taken at face value.’ ” (Id. at p. 804.) The book later discusses the Manson-family related murder of a man and woman who shared the same first name of plaintiff and his associate—James and Lauren—and speculates briefly whether they could have been the same people. (Id. at pp. 801–802.) The book ultimately concludes, however, that it is unlikely that the

9 The third individual was only discussed in passing as someone

who was found to work at Nickelodeon despite a prior conviction for a crime related to child sexual abuse; there was no indication within the documentary that he committed any acts of child abuse towards any member of Schneider’s cast.

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two men were the same people due to a significant difference in their reported ages. (Ibid.) Finally, although the book suggested two Manson family members may have been responsible for Hughes’s disappearance and murder—neither of whom was the plaintiff—it acknowledged that the identity of the actual perpetrator was unknown. (Ibid.)

The court held that “the claimed defamatory nature of the book insofar as it relates to appellant is so obscure and attenuated as to be beyond the realm of reasonableness.” (Forsher, supra, 26 Cal.3d at p. 805.) The court acknowledged that the book commented on the fact that the plaintiff never had his statement tested by the police, and that the book also explored whether the Manson-affiliated James might be one and the same as the plaintiff James Forsher. However, the court observed that the book also expressly ruled out either fact as possible evidence of the plaintiff’s involvement in Hughes’s murder. (Id. at p. 804.) The Forsher court went on to acknowledge that “[j]ust as the court must refrain from a ‘hairsplitting analysis’ of what is said . . . to find an innocent meaning, so must it refrain from scrutinizing what is not said to find ‘a defamatory meaning which the article does not convey to a lay reader.’ ” (Id. at p. 803, quoting Mullins v. Thieriot (1971) 19 Cal.App.3d 302, 304.) This court will similarly refrain from splitting hairs to find an allegation of child sexual abuse where the only such abuse discussed is explicitly attributed to named perpetrators and the documentary expressly states that an investigation into Schneider found no evidence of abuse.10 On

10 Because we conclude that Schneider cannot meet his burden to

show a probability of success on the merits because he is unable

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this record, we conclude that Schneider has not shown a likelihood of success on the merits of his defamation claim.

DISPOSITION

The order denying the motion to strike is reversed, and the trial court is directed to enter a new and different order granting the motion. (§ 452.16, subd. (c).) Defendants are awarded their costs on appeal.

CERTIFIED FOR PUBLICATION IN THE OFFICIAL REPORTS

OCHOA, J.*

We concur:

ADAMS, P. J. HANASONO, J.

to establish that Defendants’ work is reasonably subject to a defamatory interpretation, we do not address Defendants’ additional arguments that Schneider could not establish actual malice, or that he was required to plead and present evidence of special damages and failed to do so. * Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.