1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SHAHID BUTTAR FOR CONGRESS Case No. 21-cv-05566-EMC COMMITTEE, et al., 8 Plaintiffs, ORDER GRANTING DEFENDANT’S 9 MOTION TO DISMISS, AND v. GRANTING DEFENDANT’S AND 10 PLAINTIFFS’ REQUESTS FOR HEARST COMMUNICATIONS, INC., JUDICIAL NOTICE 11 Defendant. Docket Nos. 47, 49, 56 12 13 14 Plaintiffs Shahid Buttar and Shahid Buttar for Congress Committee (collectively, “SBCC”) 15 filed suit against Defendant Hearst Communications, Inc. (“Hearst”) for defamation and violation 16 of California’s unfair competition law. Docket No. 46 (“FAC”). SBCC’s claims arise from two 17 stories published in the San Francisco Chronicle in July 2020 reporting on allegations that Mr. 18 Buttar, then a candidate for Speaker Nany Pelosi’s seat in the U.S. House of Representatives, 19 sexually harassed an acquaintance Elizabeth Croydon several years earlier. After its original 20 complaint was dismissed with leave to amend, SBCC filed its First Amended Complaint. 21 Now pending before the Court is Hearst’s motion to dismiss the FAC under Fed. R. Civ. P. 22 12(b)(6) and California’s anti-SLAPP statute. Docket No. 47 (“MTD”). Also pending are 23 Hearst’s request for judicial notice, Docket No. 49 (“D’s RJN”), and SBCC’s request for judicial 24 notice, Docket No. 56 (“P’s RJN”). 25 For the following reasons, the Court GRANTS Hearst’s Request for Judicial Notice and 26 GRANTS SBCC’s Request for Judicial Notice. The Court GRANTS Hearst’s Motion to Dismiss 27 WITH PREJUDICE. 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 A. Factual Background 3 Shahid Buttar was a Democratic candidate in the November 3, 2020 general election for 4 California’s 12th U.S. Congressional District in the 2020 general election, seeking to unseat U.S. 5 Representative Nancy Pelosi. FAC ¶ 10. Shahid Buttar for Congress Committee was the 6 organization constituting Mr. Buttar’s 2020 campaign and, later, his 2022 campaign. FAC ¶ 14. 7 Hearst is a Delaware corporation that owns the San Francisco Chronicle, a newspaper for the 12th 8 Congressional District covering the City and County of San Francisco. FAC ¶ 6. 9 On July 21, 2020, Elizabeth Croydon published an essay on the website Medium.com titled 10 “Shahid Buttar Repeatedly Sexually Harassed Me.” FAC ¶ 16; Docket No. 28 (Declaration of 11 Diego Ibarguen (“Ibarguen Decl.”)) Exh. G (“Croydon Essay”). In her essay, Ms. Croydon 12 alleged that when she and Mr. Buttar both lived in Washington, D.C. in the early 2000s and were 13 part of the same activism and arts community, Mr. Buttar “made [her] feel uncomfortable,” 14 “repeatedly pursued [her] for sex,” and “let [her] know that he was sexually available to [her] for 15 years.” Croydon Essay at 1. Ms. Croydon described an instance at Mr. Shahid’s communal home 16 where he “cornered [her] with his body and got so close and brushed up against [her] breasts. He 17 blocked [her] in so [she] could not move away and gave [her] a weird smile that unnerved [her].” 18 Id. at 1. Ms. Croydon describes another instance, about a decade later, where Ms. Croydon 19 discussed her celibacy and Mr. Buttar responded with comments that made Ms. Croydon feel 20 “degraded, nauseated, and revolted that he would mock me in front of friends who looked to me as 21 an outspoken voice for women.” Id. at 1–2. Ms. Croydon opined that: “Based on my personal 22 experiences and many others not detailed, Shahid Buttar is not trustworthy or deserving of holding 23 elected office. . . . We on the left must hold ourselves to a higher standard as we are committed to 24 creating a just and equitable world, free from sexual misconduct, misogyny and bullying . . . . The 25 left can do better than Shahid Buttar.” Id. at 2–3. 26 That same day, on July 21, 2020, Hearst published an article online in the San Francisco 27 Chronicle regarding the public controversy sparked by the allegations in Ms. Croydon’s essay. 1 Garofoli and titled “Shahid Buttar, Nancy Pelosi’s Election Opponent, Accused of Sex 2 Harassment.” FAC ¶ 16. Prior to publishing the article, Mr. Garofoli reached out to SBCC for a 3 statement. FAC ¶¶ 18–19. The next day, Hearst published the same article in its print version of 4 the San Francisco Chronicle. FAC ¶ 16; Docket No. 56-1 (Declaration of Gautam Dutta (“Dutta 5 Decl.”)) Exh. 1. 6 The First Article included statements from Mr. Buttar denying the accusations: “Every 7 survivor must be heard, and I hope to be allowed the same opportunity to be heard as well . . . 8 Sexual harassment is despicable. Those who exploit structural sexism and power imbalances must 9 be exposed. I am committed to putting survivors’ interests before my own.” First Article at 2. 10 The article also reported on public pronouncements by the Democratic Socialists of America and 11 SFBerniecrats—two political organizations that had previously endorsed Mr. Buttar’s 12 candidacy—that they were reevaluating their endorsements in light of the allegations. First Article 13 at 2–4. The article reported that one local official reacted by removing his name from Mr. Buttar’s 14 website and signing “petition to unendorse him.” Id. at 4. The article quoted Mr. Buttar’s 15 response to these political consequences: “I invite their examination of the issues and our 16 campaign welcomes any scrutiny.” Id. at 3. 17 Approximately ten minutes after the First Article was published online, SBCC 18 representative Patricia Brooks emailed Mr. Garofoli, offering to connect the San Francisco 19 Chronicle with “some people who can speak about [Mr. Buttar’s] character and other claims [Ms. 20 Croydon] has made in the past that are false—including one who alleges that she also made false 21 claims about her husband. Would you want to speak with them? We are reluctant to attack her 22 character out of respect to survivors . . . but they are willing to speak with you.” FAC ¶ 22 23 (alteration in original) (emphasis omitted); see also Ibarguen Decl. Exh. I (“Email 24 Correspondence”) at 3–5. 25 The next morning, on July 22, 2020, Ms. Brooks emailed Mr. Garofoli asserting that “Ms. 26 Croydon’s allegations about Mr. Buttar were false,” and that “a number of voices had been left 27 out” from the First Article. FAC ¶¶ 30–31; Email Correspondence at 3. The email thanked Mr. 1 illuminating, and we want to make sure Shahid’s full thoughts are addressed and his position is 2 heard.” Email Correspondence at 3. The email noted that “[d]ue to time limits,” SBCC “did not 3 have time to arrange” more interviews or voices to be included in the First Article and asked Mr. 4 Garofoli, “Can we do a follow up today or soon?” Email Correspondence at 3. The email did not 5 identify any false claims in the First Article or demand any corrections or retractions. Instead, the 6 email stated, “We would like a story that offers Shahid the opportunity to give his perspective here 7 and invites others who are close to this situation. We gave a limited response, but given more 8 time, we could really tell a much bigger picture. Can you advise on what opportunities might be 9 available for that?” Email Correspondence at 3. Mr. Garofoli responded that “one opportunity 10 that might be available would be an Op-Ed. Our editorial page director . . . said he would entertain 11 reviewing one.” Email Correspondence at 2. Ms. Brooks submitted an op-ed on her own behalf. 12 Email Correspondence at 1–2. However, it was not ultimately published in the interest of 13 “fairness” because it did not “necessarily discredit[] the accuser’s account.” FAC ¶¶ 32–34; Email 14 Correspondence at 1. The following day, Mr. Garofoli received an unsolicited email from the 15 individual Chris Sampson, who claimed that Ms. Croydon was a “pathological liar” who had 16 “harassed” one of his friends and that the Chronicle “should do a better job in the future or 17 consider [its] reputation destroyed.” FAC ¶¶ 36–39. 18 On July 24, 2020, a group of 17 individuals who interacted with Mr. Buttar in “personal” 19 and “political settings” published an “Open Letter of Support for Shahid Buttar” on the website 20 Independent Political Report, asserting that Ms. Croydon’s allegations “attempted to draw a 21 different picture of Shahid than the one we know to be true.” FAC ¶ 41; Ibarguen Decl. Exh. H 22 (“Open Letter”). The signatories stated:
23 Recent allegations have attempted to draw a different picture of Shahid than the one we know to be true. We believe these 24 allegations are false and ill intentioned.
25 The accuser is well known in the DC social justice community. Unfortunately, this troubled individual has a long history of 26 fabricating attacks against innocent people. A review of litigation she has filed in various jurisdictions would likely yield a revealing 27 picture to an enterprising journalist. She has engaged in late-night witness against this promising progressive leader. 1 2 Open Letter at 1. The Open Letter did not contain any assertions that any of the signatories had 3 any direct knowledge regarding the truth of Ms. Croydon’s sexual harassment claims about Mr. 4 Buttar. 5 On July 24, 2020, Hearst published a second article about the controversy in the San 6 Francisco Chronicle, titled “Longtime activists defend Pelosi foe Shahid Buttar against sex 7 harassment accusations.” FAC ¶¶ 44–46; Ibarguen Decl., Exh. B (“Follow-Up Article”). The 8 article begins by quoting the Open Letter, recounts interviews between the Chronicle and three of 9 the Open Letter signatories, and restates Mr. Buttar’s defense that “Croydon’s charges are false.” 10 Follow-Up Article at 2–4. Indeed, the vast majority of the Follow-Up Article is dedicated to 11 interviewing and quoting those supporting Mr. Buttar:
12 Supporters of Shahid Buttar, the November election opponent of House Speaker Nancy Pelosi, are rallying around him after an East 13 Coast comedian accused him of sexually harassing her on and off for years starting nearly two decades ago. 14 A Medium post published this week by Maryland resident Elizabeth 15 Croydon “attempted to draw a different picture of Shahid, than the one we know to be true,” several progressive activists in the 16 Washington area, where Buttar used to live, said in an open letter.
17 “Shahid stands for peace, justice, and democracy. He embodies anti- oppression principles and has a demonstrated record of practices that 18 promote equity and inclusion,” said the signers, who include Code Pink cofounder Medea Benjamin, a well-known former Bay Area 19 activist who now lives in the Washington area.
20 Croydon wrote that Buttar pursued her for sex and mocked her when she said she had been celibate for several years by choice. She wrote 21 that “we on the left must hold ourselves to a higher standard as we are committed to creating a just and equitable world, free from 22 sexual misconduct, misogyny and bullying.”
23 Two progressive groups that have endorsed Buttar in his campaign to deny Pelosi re-election to her San Francisco seat said they were 24 investigating Croydon’s accusations. San Francisco Supervisor Dean Preston pulled his endorsement of Buttar, a democratic socialist 25 activist and attorney.
26 Buttar said Croydon’s charges are false.
27 “Sexual harassment is despicable,” Buttar said. “Those who exploit 1 He added, “Every survivor must be heard, and I hope to be allowed the same opportunity to be heard as well.” 2 The accusations against Buttar don’t ring true to some in the 3 Washington activist community who say they know both him and Croydon. 4 “It’s totally out of character. There’s nothing mean or nasty about 5 him,” Benjamin told The Chronicle. “He wouldn’t insult women like that.” 6 Benjamin said Buttar “is one of these guys who is politically correct 7 in so many ways. I know him as someone who is a feminist, who is very much against the patriarchy and calls people out on it. He’s 8 very careful about how he talks about women. He’s very politically evolved.” 9 Polly Miller, who worked with Buttar on an anti-police-brutality 10 campaign several years ago, said in an interview, “He worked with Code Pink. It’s all women.” 11 Croydon’s depiction of Buttar, she said, “did not match anything I 12 ever saw.”
13 Pat Elder, a longtime activist and journalist who has worked with Buttar on a half-dozen wealth inequality and antiwar campaigns, 14 said he “could not imagine Shahid carrying on like that. I respect the man and his intellect and his character.” 15 Croydon said Friday in an email that the open letter was part of a 16 “smear” campaign against her.
17 “Spending campaign time and resources on discrediting a sexual harassment survivor by essentially calling me crazy is the oldest 18 trick in the abuser’s playbook,” she wrote.
19 In an interview, she added that “no one can speak to my direct experience of Shahid.” 20 “I wanted to come forward about this much earlier, but I was 21 terrified to do so,” Croydon said. “People can hold their opinions, but they can’t speak to my direct experience.” 22 23 See Follow-Up Article. SBCC alleges, however, that the Follow-Up Article was misleading 24 because it portrayed those who supported Mr. Buttar as his “friends,” rather than as “independent 25 political activists,” and because it did not sufficiently detail Ms. Croydon’s purported “long 26 history of false accusations against political activists.” FAC ¶¶ 45–46. 27 SBCC also alleges that other news outlets reported on Mr. Buttar’s campaign following the 1 regarding Ms. Croydon’s accusations against Mr. Buttar. FAC ¶ 28; Ibarguen Decl., Exh. C. The 2 article quoted two individuals who claimed to have known Mr. Buttar in the 2000s who opined 3 that “there was no credibility to what Croydon alleges occurred,” that Mr. Buttar was an individual 4 who was “ethical and with so much integrity,” and that Ms. Croydon has falsely accused a lawyer 5 of sexual assault in 2006. FAC ¶ 29. On July 23, 2020, The Intercept published an article titled 6 “Shahid Buttar’s Bid to Unseat Nancy Pelosi Roiled By Accusations of Staff Mistreatment” that 7 questioned Ms. Croydon’s credibility but also described a “culture of misogyny” in Mr. Buttar’s 8 campaign. FAC ¶ 40; Ibarguen Decl. Exh. D at 2, 4. On September 25, 2020, The Intercept 9 published an article stating that, based on its investigation, it was “not able to corroborate Ms. 10 Croydon’s allegations” and that publication interviewed multiple sources “who recounted having 11 disturbing interactions which her that caused them to question her credibility.” FAC ¶ 42; Dutta 12 Decl. Exh. 3. 13 Lastly, SBCC alleges that the First Article “delivered crippling blows to Mr. Buttar’s 14 insurgent campaign against House Speaker Pelosi, who defeated Mr. Buttar on Nov. 3, 2020; and 15 played a role in Mr. Buttar’s failure to qualify for the Nov. 8, 2022 Congressional general 16 election.” FAC ¶ 56. SBCC alleges that “[h]ad Mr. Buttar been a White male such as Joe Biden 17 or Pete Buttigieg, rather than an immigrant Muslim of Pakistani descent, the Chronicle would not 18 have recklessly rushed to the publish [the First Article], let alone publish it. Instead, the Chronicle 19 would have thoroughly investigated whether or not Ms. Croydon’s allegations were credible.” 20 FAC ¶ 55. Regarding damages, SBCC alleges that “[t]he repeated indulgence and publication of 21 false harassment claims by a newspaper of record destroyed the plaintiff’s campaign for public 22 office, ended any possibility of future public service, foreclosed future opportunities to return to 23 his well-established career of non-profit advocacy, and blocked a visionary public policy agenda 24 that had previously attracted unprecedented support.” FAC ¶ 63. 25 B. Procedural History 26 SBCC filed its original complaint on July 20, 2021. Docket No. 1 (“Compl.”). First, 27 SBCC alleged defamation at common law and under Cal. Civ. Code § 45 because the “Chronicle 1 . . . [who] would have provided details of Ms. Croydon’s history of lobbing false allegations.” 2 Compl. ¶¶ 57–58. Second, SBCC alleged a derivative violation of California’s unfair competition 3 law based on Hearst “maliciously defaming Buttar for Congress and Mr. Buttar.” Compl. ¶¶ 65– 4 66. Hearst filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6) and Cal. Civ. Proc. Code § 5 425.16(b)(1) on the basis that the anti-SLAPP statute applies to all SBCC’s claims. Docket No. 27 6 (“First MTD”). The Court held that SBCC failed to state a claim of defamation under the anti- 7 SLAPP statute and failed to state a derivative claim under California’s unfair competition law. 8 Docket No. 39 (“First MTD Order”) at 20. The Court granted the motion to dismiss with 9 prejudice with regards to the First Article because SBCC failed to plead actual malice based on 10 any alleged failure to investigate or contact certain individuals. First MTD Order, at 14–15. The 11 Court granted leave to amend on the Follow-Up Article “although it appears unlikely that 12 Plaintiffs will be able to cure the deficiencies in their complaint.” First MTD Order, at 20–21. 13 SBCC filed a First Amended Complaint. The only new language that has been added are 14 as follows: 15 • 1. The First Amendment exists to protect legitimate journalism, not racist character assassination in the service of a public assault on 16 election integrity and democratic accountability. The First Amendment is supposed to protect democracy, not invite its 17 subversion. 18 • 3. On July 21, 2020, the San Francisco Chronicle published an article containing a false allegation that Congressional candidate 19 Shahid Buttar had committed sexual harassment. 20 • 13. Mr. Buttar ran again as a candidate in the 2022 Congressional election, but did not qualify for the Nov. 8, 2022 general election. 21 • 32. . . . At the time, the Chronicle’s opinions editor was John Diaz. 22 • 33. . . . Specifically, Ms. Brooks responded to Mr. Garofoli’s July 23 22, 2020 email and added Mr. Diaz to the recipient list. 24 • 34. In response, Mr. Diaz sent Ms. Brooks an email on July 23, 2020. . . . 25 • 35. Upon information and belief, Mr. Diaz was authorized to receive 26 correction requests on behalf of the Chronicle’s publisher; alternatively, the Chronicle’s publisher had actual knowledge of Ms. 27 Brooks’ July 22, 2020 correction request within 20 days of her • 46. Second, the Follow-Up Piece failed to disclose that Ms. 1 Croydon was not only a source known to be unreliable, but had a long history of hurling false accusations – including a false 2 allegation of sexual assault – against political activists. 3 • 47. The Follow-Up Piece thus deprived Chronicle readers of Ms. Croydon’s history of hurling such false accusations, even though the 4 July 23, 2020 Intercept, Mr. Sampson, and the 17 signatories of the Open Letter had laid bare obvious reasons to doubt Ms. Croydon’s 5 veracity. 6 • 51. In so doing [providing hyperlinks to Ms. Croydon’s essay and not the Open Letter], the Chronicle implied that Ms. Croydon’s 7 allegations were more credible than those of any of the 17 signatories to the Open Letter. 8 • 53. In the United States, Islam is one of the most stigmatized 9 religions. Only 42 percent of Americans have a favorable view of Islam, according to a 2021 Associated Press/Norc Center for Public 10 Affairs Research poll. 11 • 54. Joe Biden and Pete Buttigieg, who are both White males, were both accused of sexual misconduct during their respective 12 Presidential candidacies. The Chronicle did not rush to publish any of those accusations. Instead, the Chronicle demonstrated the care it 13 owed its readers and the public at large. 14 • 56. The Chronicle’s publication of the Original Piece . . . played a role in Mr. Buttar’s failure to qualify for the Nov. 8, 2022 15 Congressional general election. 16 See FAC. The FAC also included additional allegations on damages. FAC ¶¶ 64–93. 17 Hearst filed another motion to dismiss on the same grounds. Docket No. 47 (“Second 18 MTD”); Docket No. 55 (“Second MTD Opp.”). Also pending is Hearst’s request for judicial 19 notice, Docket No. 49 (“D’s RJN”), and SBCC’s request for judicial notice, Docket No. 56 (“P’s 20 RJN”). 21 II. REQUEST FOR JUDICIAL NOTICE (FED. RULE OF EVIDENCE 201(B)) 22 The Court may take judicial notice of matters that are either “generally known within the 23 trial court’s territorial jurisdiction” or “can be accurately and readily determined from sources 24 whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). However, to the extent 25 any facts in documents subject to judicial notice are subject to reasonable dispute, the Court will 26 not take judicial notice of those facts. See Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 27 2001) (“A court may take judicial notice of ‘matters of public record’ . . . [b]ut a court may not 1 Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986); then quoting Fed. R. Evid. 201(b)), 2 overruled on other grounds by Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002). 3 A. Hearst’s Request for Judicial Notice 4 The Court grants Hearst’s request for judicial notice in support of the City’s motion for 5 summary judgment. Courts may take judicial notice of a public record that is not subject to 6 reasonable dispute. Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001). Courts may 7 take judicial notice of all “evidence on which the complaint ‘necessarily relies’ if: (1) the 8 complaint refers to the document; (2) the document is central to the plaintiff’s claim; and (3) no 9 party questions the authenticity of the document.” United States v. Corinthian Colls., 655 F.3d 10 984, 999 (9th Cir. 2011). In support of its motion to dismiss, Hearst requested judicial notice of 11 nine documents. D’s RJN at 2. Exhibit A is the online version of the First Article published by 12 Hearst on July 21, 2020, which is referred to and hyperlinked in the FAC. Ibarguen Decl. Exh. A; 13 FAC ¶¶ 16, 21–22, 56, 58, 96–98. Exhibit B is the online version of the second Follow-Up Article 14 published by Hearst on July 24, 2020, which is referred to in the FAC. Ibarguen Decl. Exh. B; 15 FAC ¶¶ 44–51, 99–100. Exhibits C through F are four news articles published by other news 16 outlets (Bay Area Reporter, The Intercept, Mission Local, and 48hills), which are referred to and 17 quoted in the FAC. Ibarguen Decl. Exh. B; FAC ¶¶ 28–29, 40, 42–43, 58. Exhibit G is Elizabeth 18 Croydon’s essay published on Medium, which is referred to and hyperlinked in the FAC. Ibarguen 19 Decl. Exh. G; FAC ¶ 17 n.3. Exhibit H is an Open Letter published on the Independent Political 20 Report in support of Mr. Buttar, which is referred to and hyperlinked in the FAC. Ibarguen Decl. 21 Exh. H; FAC ¶ 41 n.10. Exhibit I is an email thread between SBCC and SFC employees. 22 Ibarguen Decl. Exh. I; FAC ¶¶ 30–31, 33–35. Given that each exhibit is referenced in SBCC’s 23 FAC, SBCC cannot persuasively argue that these documents are “not relevant.” Docket No. 57 24 (P’s Objections to D’s RJN). Moreover, the Court previously took judicial notice of all these 25 documents in connection with the motion to dismiss SBCC’s original complaint; the FAC includes 26 all the references and allegations contained in the original complaint and refers to each of these 27 documents. First MTD Order, at 2 n.1. 1 B. SBCC’s Request for Judicial Notice 2 The Court also grants SBCC’s request for judicial notice. Exhibit 1 is the print version of 3 the First Article, republished on July 22, 2020, which is explicitly referred to in the FAC. Docket 4 No. 56-1 (Declaration of Gautam Dutta (“Dutta Decl.”)) Exh. 1; FAC ¶ 16 n.2. Exhibit 2 is the 5 print version of the second Follow-Up Piece, republished on July 25, 2020, which is referred to in 6 the FAC. Dutta Decl. Exh. 2; FAC ¶ 44. Exhibit 3 is an article published in The Intercept, which 7 is explicitly referred to in the FAC. Dutta Decl. Exh. 2; FAC ¶ 42. The Court also previously 8 took judicial notice of the online versions of Exhibits 1 and 2, as noted above. 9 Thus, SBCC’s request for judicial notice is GRANTED. 10 III. MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (RULE 12(B)(6)) 11 A. Legal Standard 12 Federal Rule of Civil Procedure 8(a)(2) requires a complaint to include “a short and plain 13 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A 14 complaint that fails to meet this standard may be dismissed pursuant to Rule 12(b)(6). See Fed. R. 15 Civ. P. 12(b)(6). To overcome a Rule 12(b)(6) motion to dismiss after the Supreme Court’s 16 decisions in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corporation v. Twombly, 550 17 U.S. 544 (2007), a plaintiff’s “factual allegations [in the complaint] ‘must . . . suggest that the 18 claim has at least a plausible chance of success.’” Levitt v. Yelp! Inc., 765 F.3d 1123, 1135 (9th 19 Cir. 2014). The court “accept[s] factual allegations in the complaint as true and construe[s] the 20 pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & 21 Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). But “allegations in a complaint . . . may not 22 simply recite the elements of a cause of action [and] must contain sufficient allegations of 23 underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” 24 Levitt, 765 F.3d at 1135 (quoting Eclectic Props. E., LLC v. Marcus & Millichap Co., 751 F.3d 25 990, 996 (9th Cir. 2014)). “A claim has facial plausibility when the Plaintiff pleads factual 26 content that allows the court to draw the reasonable inference that the Defendant is liable for the 27 misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a 1 unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). 2 B. Discussion 3 Hearst moves to dismiss SBCC’s claims under California’s anti-SLAPP statute, which 4 allows for pre-trial dismissal of SLAPP suits (“strategic lawsuits against public participation”). 5 Cal. Civ. Proc. Code § 425.16; Metabolife Int’l, Inc. v. Wornick, 264 F.3d 832, 839 (9th Cir. 6 2001). The statute aims to identify, early in the litigation process, “meritless first amendment 7 cases aimed at chilling expression through costly, time-consuming litigation.” Metabolife, 264 8 F.3d at 839. Federal courts in this circuit apply California’s anti-SLAPP statute. Id. at 839–40. 9 “A court considering a motion to strike under the anti-SLAPP statute must engage in a 10 two-part inquiry.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1110 (9th Cir. 2003). First, the 11 defendant must “make an initial prima facie showing that the plaintiff’s suit arises from an act [by 12 the defendant] in furtherance of the defendant’s rights of petition or free speech.” Id. (citation 13 omitted). Second, where a defendant makes the required prima facie showing, “the burden shifts 14 to the plaintiff to demonstrate a probability of prevailing on the challenged claims.” Id. at 1110. 15 If “a defendant makes an anti-SLAPP motion to strike founded on purely legal arguments, then the 16 analysis is made under Fed. R. Civ. P. 8 and 12 standards.” Planned Parenthood Fed’n of Am., 17 Inc. v. Ctr. for Med. Progress, 890 F.3d 828, 833 (9th Cir.), amended, 897 F.3d 1224 (9th Cir. 18 2018). “If a defendant makes a special motion to strike based on alleged deficiencies in the 19 plaintiff’s complaint, the motion must be treated in the same manner as a motion under Rule 20 12(b)(6).” Id. at 834. Accordingly, the procedural grounds for dismissal under anti-SLAPP are 21 identical to those under Rule 12(b)(6): a plaintiff’s “[f]actual allegations must be enough to raise a 22 right to relief above the speculative level . . . that is, a claim to relief that is plausible on its face.” 23 Twombly, 550 U.S. at 555–56, 569. 24 1. Step One: Applicability of the Anti-SLAPP Statute 25 Under the first step of Vess’ two-step test, the Court considers whether the defendant has 26 made an initial prima facie showing that the anti-SLAPP statute applies. As § 425.16 of the 27 statute provides: under the United States or California Constitution in connection 1 with a public issue includes:
2 (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official 3 proceeding authorized by law;
4 (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or 5 judicial body, or any other official proceeding authorized by law;
6 (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public 7 interest; or
8 (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free 9 speech in connection with a public issue or an issue of public interest. 10 11 Cal. Civ. Proc. Code § 425.16(e). Here, SBCC’s suit challenges Hearst’s publication of news 12 articles regarding the public controversy of (1) the published accusations of sexual harassment 13 against Mr. Buttar, then a candidate for the U.S. House of Representatives; (2) Mr. Buttar’s 14 response to those allegations; and (3) the public response to those allegations by several of Mr. 15 Buttar’s political supporters and others. Sipple v. Found. For Nat’l Progress, 71 Cal. App. 4th 16 226, 240 (1999) (“[N]ews reporting is free speech and section 425.16 motions can apply to media 17 defendants in libel actions”); Eva v. Smith, 89 Cal. App. 324, 328–30 (1928) (“An individual who 18 seeks or accepts public office invites and challenges public criticism so far as it may relate to his 19 fitness and qualifications[.] The right of criticism rests upon public policy . . .”). There is no 20 dispute that SBCC’s suit arises from a written statement by Hearst in a public forum in connection 21 with an issue of public interest in furtherance of Hearst’s right of free speech. See Second MTD 22 Opp. at 12 n.51 (“Plaintiffs do not dispute that the first prong of the Anti-SLAPP analysis has been 23 satisfied.”). 24 2. Step Two: Probability of Success of the Defamation Claim 25 Having found that the anti-SLAPP statute applies, under the second step of Vess’ two-step 26 test, the Court next considers whether the plaintiff has demonstrated a probability of prevailing on 27 the challenged claims. Here, SBCC must show (1) falsity and (2) actual malice. Having already 1 inquiry to the Follow-Up Article in this motion to dismiss. SBCC fails to plausibly allege facts 2 showing falsity and actual malice, and thus fails to demonstrate a probability of prevailing on its 3 defamation claim. 4 a. Material Falsity 5 First, a plaintiff must show that each statement is materially false in the context of the 6 whole publication. See Phila. Newspapers, Inc. v. Hepps, 475 U.S. 767, 775 (1986); Vogel v. 7 Felice, 127 Cal. App. 4th 1006, 1021–23 (2005). Media statements on matters of public interest 8 “must be provable as false before there can be liability under state defamation law.” Milkovich v. 9 Lorain Journal Co., 497 U.S. 1, 18–20 (1990). Generalized allegations of defamation without 10 specific allegations of the challenged speech are typically insufficient. Flowers v. Carville, 310 11 F.3d 1118, 1130–31 (9th Cir. 2002). SBCC failed to plausibly allege that the Follow-Up 12 contained any inaccurate facts. 13 As the Court explained in its previous order granting Hearst’s motion to dismiss:
14 Plaintiffs do not plead that the Articles contained any factual inaccuracies in its account of the substance of Croydon’s allegations 15 (apart from their denial of the allegations themselves, which Defendant reported), nor do they allege that Hearst’s reporting on 16 Buttar’s denial of the allegations contained any factual errors. Plaintiffs do not plead that Hearst’s Reporting presented Croydon’s 17 allegations of sexual harassment as statements of fact that Buttar actually harassed Croydon. Nor could they. Hearst’s Reporting does 18 not assert or imply that Croydon’s allegations were anything more than her unproven claims, which were disputed by Buttar. 19 Instead, Plaintiffs’ allegation of falsity is based on Defendant’s 20 failure to do more: Defendant did not interview and quote the Campaign’s preferred sources and did not report on allegations by 21 those sources that Croydon had made false reports of sexual harassment against other individuals in the past. Compl. ¶¶ 21, 43. 22 However, Plaintiffs do not allege that any of their preferred sources 23 could have offered anything but their own speculation about any of Croydon’s allegations against Plaintiff Buttar. Plaintiffs do not 24 allege that those sources had any firsthand knowledge as to the veracity of Croydon’s allegations. There is no allegation that 25 Defendant’s omission of quotations from these sources renders anything in either Article provable as false. Moreover, Plaintiffs fail 26 to demonstrate through their pleading that the inclusion of the opinions of the Campaign’s preferred sources about Croydon’s 27 credibility based on unrelated conduct, in light of the fact that Masson, 501 U.S. at 517 (citation omitted). Accordingly, Plaintiffs 1 pleading of falsity appears problematic. 2 First MTD Order, at 11–12. This Court also rejected SBCC’s argument that the Follow-Up 3 Article misleadingly portrayed the signatories of the Open Letter as “Mr. Buttar’s friends, when 4 they are fiercely independent political activists,” Compl. ¶ 42, because the article in fact accurately 5 identified the background and professions of the named signatories. First MTD Order at 12–13. 6 The Court found SBCC’s argument that the article failed to include allegations that “Croydon had 7 a long history of false accusation against political activists,” Compl. ¶ 43, were not likely to state a 8 defamation claim because it is unlikely that unrelated incidents undercut the veracity of the 9 article’s contents. First MTD Order at 13. 10 No new allegations compel otherwise. SBCC has not added factual allegations that show 11 falsity in the Follow-Up Article. The few additional allegations are repetitive of facts previously 12 in the original complaint (such as repeating that Ms. Croydon is an unreliable source), address 13 irrelevant subject matter (such as making general statements about democracy, freedom of speech, 14 and racial discrimination), or are conclusory statements (such as that Ms. Croydon was “known to 15 be unreliable” or that there were “obvious reasons” to doubt her) which contain no new 16 substantive facts material to falsity of the reported accusation. Thus, SBCC again fails to 17 plausibly allege falsity. 18 b. Actual Malice 19 Second, even if falsity were deemed to have been sufficiently alleged, SBCC must show 20 that the statements about Mr. Buttar in the Follow-Up Article were published with “actual 21 malice.” See New York Times Co. v. Sullivan, 376 U.S. 254, 285–286 (1964). The Supreme Court 22 has reasoned that “public figures” are less vulnerable and less entitled to protection in holding the 23 public figures must prove “actual malice” to support a defamation claim relating to their official 24 conduct. Reader’s Dig. Assn. v. Superior Ct., 37 Cal. 3d 244, 252–53 (1984) (citing Gertz v. 25 Robert Welch, Inc., 418 U.S. 323 (1974)). Mr. Buttar—a then-candidate for the U.S. House of 26 Representatives—is a public figure that must make a showing of “actual malice” for his 27 defamation claim. See St. Amant v. Thompson, 390 U.S. 727, 728 (1968) (finding “a candidate for 1 To show “actual malice,” a public figure must demonstrate that the publisher acted with 2 “knowledge that it was false or with reckless disregard of whether it was false or not.” New York 3 Times, 376 U.S. at 280. SBCC contends Hearst relied on a source known to be unreliable or failed 4 to investigate in light of a source’s known lack of reliability. See Opp. to MTD at 13. While it is 5 true that “actual malice can be proved by circumstantial evidence” such as “reliance upon sources 6 known to be unreliable or . . . failure to investigate,” Balla v. Hall, 59 Cal. App. 5th 652, 683 7 (2021), review denied (Apr. 14, 2021) (citing Reader’s Dig. Assn., 37 Cal. 3d at 257), the plaintiff 8 must nonetheless prove that “the publisher himself had serious doubts regarding the truth of his 9 publication.” Id. (emphasis added). 10 The failure to investigate, without more, generally is insufficient. Id.; see also St. Amant, 11 390 U.S. at 733 (citing New York Times, 376 U.S. at 287–88) (“Failure to investigate does not in 12 itself establish bad faith.”); Wynn v. Chanos, 75 F. Supp. 3d 1228, 1239 (N.D. Cal. 2014) 13 (“[G]eneral allegations that a defendant should have known or should have investigated the truth 14 of his or her statements do not adequately plead actual malice.”); Khawar v. Globe Int’l, Inc., 19 15 Cal. 4th 254, 275–76 (1998), as modified (Dec. 22, 1998) (citing Harte-Hanks Communications v. 16 Connaughton, 491 U.S. 657, 688 (1989)) (“When, as in this case, a finding of actual malice is 17 based on the republication of a third party’s defamatory falsehoods, ‘failure to investigate before 18 publishing, even when a reasonably prudent person would have done so, is not sufficient.’”). In 19 St. Amant, the Supreme Court held that even when a publisher “had personal knowledge” of a 20 public figure’s activities, “relied solely on [an] affidavit” without additional evidence on an 21 accuser’s “reputation for veracity,” “failed to verify the information with those . . . who might 22 have known the facts,” and “gave no consideration to whether or not the statements defamed” the 23 public figure, this fell short of proving actual malice. St. Amant, 390 U.S. at 730. That evidence 24 was not sufficient “to permit the conclusion that the defendant in fact entertained serious doubts as 25 to the truth of his publication.” Id. at 731. 26 The importance of the requirement of actual malice in the context of an alleged failure to 27 investigate and provide more complete reporting of accusations against a public figure is 1 but the reporter of it. Cf. Pacific Gas & Electric Co. v. Public Utilities Com., 475 U.S. 1, 33 2 (1986) (“[I]nterference with the exercise of editorial control and judgment creates a peril for the 3 liberty of the press like government control over what is to go into a newspaper.” (internal 4 quotation marks omitted)); Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 258 (1974) (“The 5 choice of material to go into a newspaper, and the decisions made as to limitations on the size and 6 content of the paper, and treatment of public issues and public officials—whether fair or unfair— 7 constitute the exercise of editorial control and judgment.”) 8 Here, SBCC has again failed sufficiently to plead actual malice. It failed to plausibly plead 9 facts establishing that Hearst entertained serious doubts as to the truth of the Follow-Up Article. 10 There is no evidence that any signatory of the Open Letter had direct knowledge of the falsity of 11 Ms. Croydon’s claims about Mr. Buttar. See FAC ¶ 46. As to the assertion that “Ms. Croydon 12 was not only a source known to be unreliable, but had a long history of hurling false accusations – 13 including a false allegation of sexual assault – against political activists,” FAC ¶ 46, there is no 14 indication that the sources of these assertions were so reliable and the information so verified as to 15 establishing there were “obvious reasons to doubt Ms. Croydon’s veracity,” as Plaintiff alleges. 16 FAC ¶ 47. In particular, as to the email sent to Mr. Garofoli and two other Chronicle employees 17 by Mr. Chris Sampson stating that Ms. Croydon was a “pathological liar” who had “harassed” one 18 of his friends, FAC ¶¶ 36–37, the FAC does not allege that the sender of the email had any 19 firsthand knowledge of the disputed facts or was known as credible in the journalistic or political 20 community; there is no disclosure of the source of Mr. Sampson’s information, and no revelation 21 as to what interests Mr. Sampson had in the situation. In short, there is no basis establishing 22 Hearst “in fact entertained serious doubts as to the truth of his publication.” St. Amant, 390 U.S. at 23 731. Although a publisher may be held liable if it engages in “highly unreasonable conduct 24 constituting an extreme departure from the standards of investigation and reporting ordinarily 25 adhered to by responsible publishers,” Curtis Pub. Co. v. Butts, 388 U.S. 130, 158 (1967), no such 26 showing is established by the FAC here. There is no showing that the failure to further investigate 27 the assertions in the Open Letter or Mr. Sampson’s emails, or the editorial decision to not include 1 investigation and reporting ordinarily adhered to by responsible publishers.” St. Amant, 390 U.S. 2 at 733; Wynn, 75 F. Supp. 3d at 1239; Khawar, 19 Cal. 4th at 275–76. Notably, the article in fact 3 thoroughly summarizes the contents of the Open Letter in support of Mr. Buttar, accurately 4 describes in large part the signatories thereof, and describes and quotes liberally from further 5 interviews with Mr. Buttar’s supporters. See Follow-Up Article (quoting statements by the Open 6 Letter signatories, Medea Benjamin, Polly Miller, Pat Elder, and Mr. Buttar himself in support of 7 Mr. Buttar). 8 What this Court previously explained in its previous order granting Hearst’s motion to 9 dismiss, remains true:
10 First, Plaintiffs do not plead actual malice by relying on a purported failure to contact certain individuals who, based on the facts pled in 11 the Complaint, lacked any specific or actual knowledge that Croydon’s allegations against Buttar were false. Though the 12 Complaint alleges that these individuals subjectively believed – based on their own interactions with her or with Buttar – that 13 Croydon’s allegations were not credible, the Complaint fails to allege any facts indicating that these individuals (or anyone else not 14 contacted by Hearst) could offer actual knowledge that the specific allegations against Buttar were false. And certainly there is no 15 allegation that Defendant knew that these individuals had actual knowledge. 16 Second, Defendant’s alleged failure to investigate by contacting 17 preferred sources proposed by Plaintiffs is insufficient to demonstrate the articles at issue were published with knowledge of 18 their falsity or reckless disregard for their truth. Reader’s Digest, 37 Cal. 3d at 247 (“The failure to conduct a thorough and objective 19 investigation, standing alone, does not prove actual malice, nor even necessarily raise a triable issue of fact on that controversy”); see 20 also Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 688 (1989) (“[F]ailure to investigate before publishing, even when a 21 reasonably prudent person would have done so, is not sufficient to establish reckless disregard”); St. Amant v. Thompson, 390 U.S. 727, 22 731 (1968) (“[R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have 23 investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious 24 doubts as to the truth of his publication.”). Here, there is nothing alleged that would rise above, e.g., negligence. Again, nothing in the 25 Open Letter or any other source indicated that any potential source has firsthand knowledge of Croydon’s allegations against Buttar and 26 thus were particularly credible. 27 First MTD Order at 14–15. For the reasons stated above, the additional allegations of the FAC 1 Because SBCC again failed to show a likelihood of success on the defamation claim, the 2 Court concludes that the anti-SLAPP statute bars SBCC’s suit. 3 Because SBCC’s defamation claim fails under the anti-SLAPP statute, the Court need not 4 reach the issue of damages. 5 C. Leave to Amend 6 The Court previously dismissed the claims arising from the First Article with prejudice. 7 First MTD Order at 21. The Court granted leave to amend the original complaint. Plaintiff was 8 granted leave to amend before it could be dismissed with prejudice under the anti-SLAPP statute. 9 See Verizon Delaware, Inc. v. Covad Commc’ns Co., 377 F.3d 1081, 1091 (9th Cir. 2004). As the 10 Ninth Circuit has explained, “[i]f the offending claims remain in the first amended complaint, the 11 anti-SLAPP remedies remain available to defendants.” Id. Because SBCC’s FAC again fails to 12 survive the motion to dismiss under the anti-SLAPP statute, this time the Court dismisses the FAC 13 with prejudice. 14 The Court GRANTS Hearst’s Request for Judicial Notice and GRANTS SBCC’s Request 15 for Judicial Notice. The Court GRANTS Hearst’s Motion to Dismiss WITH PREJUDICE. 16 This order thus disposes of Docket Nos. 47, 49, and 56. The Clerk is instructed to enter 17 judgment for Defendant and close the case. 18 19 IT IS SO ORDERED. 20 21 Dated: February 16, 2023 22 23 ______________________________________ EDWARD M. CHEN 24 United States District Judge 25 26 27