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 v. 10 Docket No. 27

HEARST COMMUNICATIONS, INC.,

11 Defendant. 12 13 14 I. INTRODUCTION 15 Plaintiffs Shahid Buttar and Shahid Buttar for Congress Committee bring this action 16 against Defendant Hearst Communications, Inc. alleging defamation and a derivative violation of 17 California’s unfair competition law. Plaintiffs’ claims arise from two stories published in the San 18 Francisco Chronicle in July 2020 reporting on allegations that Buttar, then a candidate for 19 Speaker Nany Pelosi’s seat in the U.S. House of Representatives, sexually harassed an individual 20 several years earlier. The Chronicle stories summarized the substance of the allegations that the 21 individual, Elizabeth Croydon, published online in an essay on the website Medium, included 22 Buttar’s denial of those allegations, and detailed the actions undertaken in response to the 23 allegations by some of Buttar’s political supporters. 24 Now pending is Defendant’s motion to dismiss the complaint in its entirety under Fed. R. 25 Civ. P. 12(b)(6) and California’s anti-SLAPP statute. Docket No. 27 (“Mot.”). For the following 26 reasons, the Court GRANTS Defendant’s motion. 27 1 II. BACKGROUND 2 A. Factual Allegations 3 In July 2020, Plaintiff Buttar was a candidate in the November 3, 2020 general election 4 for California’s 12th U.S. Congressional District in the 2020 general election, seeking to unseat 5 U.S. Rep. Nancy Pelosi, the sitting Speaker of the House. Docket No. 1 (“Compl.”) ¶ 9. Plaintiff 6 Shahid Buttar for Congress Committee was an unincorporated organization constituting Buttar’s 7 campaign. Id. ¶ 13. 8 On July 21, 2020, an acquaintance of Buttar, Elizabeth Croydon (“Croydon”), published an 9 essay on the web site Medium.com titled “Shahid Buttar Repeatedly Sexually Harassed Me.” Id. ¶ 10 16; Docket No. 28 (“Ibarguen Decl.”), Exh. G (“Croydon Essay).1 In her essay, Croydon alleged, 11 that when she and Buttar were both living In Washington, D.C., in the early 2000s and were part 12 of the same activism and arts community, Buttar “made [her] feel uncomfortable”; “repeatedly 13 pursued [her] for sex”; and “let [her] know that he was sexually available to [her] for years.” 14 Croydon Essay at 1. Croydon described an instance roughly a decade later in which she said she 15 was “shocked and embarrassed” when, after Croydon discussed her celibacy, Buttar allegedly 16 responded with comments that Croydon wrote made her feel “degraded, nauseated, and revolted 17 that he would mock me in front of friends who looked to me as an outspoken voice for women.” 18 Id. at 1-2. Croydon concluded by expressing her opinion: “We on the left must hold ourselves to a 19 higher standard as we are committed to creating a just and equitable world, free from sexual 20 misconduct, misogyny and bullying . . . . The left can do better than Shahid Buttar.” Id. at 2-3. 21 That same day, Defendant Heart published an article in the San Francisco Chronicle, 22 written by reporter Joe Garofoli, regarding the public controversy sparked by the allegations in the 23

24 1 The Court refers to the contents of Croydon’s Essay because it is incorporated by reference to the Complaint because it is explicitly referred to and hyperlinked in the Complaint, central to 25 Plaintiffs’ claims, and Plaintiffs do not dispute the authenticity of the document. United States v. Corinthian Colls., 655 F.3d 984, 999 (9th Cir. 2011). For the same reasons, each of the 26 documents in Defendant’s Requests for Judicial Notice, Docket Nos. 28, Docket No. 33 n. 2, are incorporated by reference. To the extent Plaintiffs object to the Court taking judicial notice of 27 these documents because they do not satisfy Fed. R. Evid. 201 or contain disputed facts, see 1 Croydon Essay, titled “Shahid Buttar, Nancy Pelosi’s election opponent, accused of sex 2 harassment” (the “First Article”). Compl. ¶¶ 2, 15; Ibarguen Decl., Exh. A (“First Article”). The 3 First Article, published online at 8:19pm on July 21, 2020, included a hyperlink to Croydon’s 4 Essay, id. ¶ 45. Prior to publishing the article, Garofoli corresponded with the Buttar for Congress 5 Committee and received a statement from the committee. Id. ¶ 18. The First Article included 6 statements from Buttar denying the accusations and that, “Every survivor must be heard, and I 7 hope to be allowed the same opportunity to be heard as well. . . Sexual harassment is despicable. 8 Those who exploit structural sexism and power imbalances must be exposed. I am committed to 9 putting survivors’ interests before my own.” First Article at 2. 10 The First Article also reported on public pronouncements by two political organizations 11 that had previously endorsed Buttar’s candidacy, which said they were reevaluating their 12 endorsements in light of the allegations, and also that one local elected official reacted to the 13 allegations by having his name removed from Buttar’s website and signing “a . . . petition to 14 unendorse him.” Id. The First Article quoted Buttar’s statement in response to these political 15 consequences: “I invite their examination of the issues and our campaign welcomes any scrutiny.” 16 Id. 17 Approximately ten minutes after the First Article was published online on July 21, a Buttar 18 Campaign representative emailed reporter Garofoli offering to connect the newspaper with “some 19 people who can speak about [Mr. Buttar’s] character and other claims [Ms. Croydon] has made in 20 the past that are false – including one who alleges that she also made false claims about her 21 husband. Would you want to speak with them? We are reluctant to attack her character out of 22 respect to survivors . . . but they are willing to speak with you.” Compl. ¶ 21 (alteration in 23 original) (emphasis omitted); see also Docket No. 34 (“Email Correspondence”) at 6. That same 24 evening, a different publication, The Bay Area Reporter, published an article regarding Croydon’s 25 accusations against Buttar, and included quotations from two individuals who claimed to have 26 known Buttar in the 2000s and opined that Croydon’s allegations lacked credibility, that Buttar 27 was an individual with integrity, and that Croydon has falsely accused another lawyer of sexual 1 At 5:44 a.m. on July 22, 2020, the day after Defendant published the First Article, a 2 representative of Buttar’s campaign emailed reporter Garofoli asserting that “Ms. Croydon’s 3 allegations about Mr. Buttar were false,” and that “a number of voices had been left out” from the 4 First Article. Compl. ¶ 30. The email thanked Garofoli for his coverage, and suggested that “there 5 is a lot more to this story that we think will be illuminating.” Email Correspondence at 6. The 6 campaign representative noted that “[d]ue to time limits” the campaign “did not have time to 7 arrange” more interviews or voices to be included in the First Article, and asked Garofoli, “Can 8 we do a follow up today or soon?” Id. The email did not identify any false claims in the First 9 Article or demand any corrections or retractions. Instead, the email states, “We would like a story 10 that offers Shahid the opportunity to give his perspective here and invites others who are close to 11 this situation. We gave a limited response, but given more time, we could really tell a much 12 bigger picture. Can you advise on what opportunities might be available for that?” Id. Reporter 13 Garofoli responded to the campaign representative by suggesting that “one opportunity that might 14 be available would be an Op-Ed. Our editorial page director. . . said he would entertain reviewing 15 one.” Id. at 5. The campaign submitted an op-ed; however, it was not ultimately published. 16 Compl. ¶ 31. 17 Two days later, on July 24, 2020, a group of 17 individuals published an “Open Letter of 18 Support for Shahid Buttar” (hereinafter, the “Open Letter”) on a website called Independent 19 Political Report asserting, among other things, that Croydon’s allegations “attempted to draw a 20 different picture of Shahid than the one we know to be true.” Compl. ¶ 38; Ibarguen Decl. Exh. H. 21 The signatories of the Open Letter stated the opinion that they “believe these allegations are false 22 and ill intentioned,” and asserted that, based on unrelated actions they attributed to Croydon, the 23 signatories believed “[s]he is NOT a credible witness.” Compl. ¶ 38; Ibarguen Decl. Exh. H (“The 24 accuser is well known in the DC social justice community. Unfortunately, this troubled individual 25 has a long history of fabricating attacks against innocent people”). However, the Open Letter did 26 not contain any assertions that any of the signatories had any direct knowledge regarding the truth 27 of Croydon’s claims about Buttar. 1 controversy in the San Francisco Chronicle, titled “Longtime activists defend Pelosi foe Shahid 2 Buttar against sex harassment accusations.” Compl. ¶¶ 41-45. 2 The article referred to and quoted 3 the Open Letter, quoted several activists who signed the Open Letter, and restated Buttar’s 4 position that “Croydon’s charges are false.” Ibarguen Decl., Exh. B. Plaintiffs allege, however, 5 that the Follow Up Article was misleading because it portrayed those who spoke out in Buttar’s 6 defense as his friends, rather than as independent political activists, and did not sufficiently detail 7 Croydon’s allegedly “long history of false accusations against political activists.” Compl. ¶¶ 42- 8 43. 9 Two months later, on September 25, 2020, Plaintiffs allege that a different publication, The 10 Intercept, published an article stating that, based on its investigation, it was “not able to 11 corroborate Croydon’s allegations” and that publication interviewed multiple sources “who 12 recounted having disturbing interactions which her that caused them to question her credibility.” 13 Compl. ¶ 39. 14 Plaintiffs allege that, “[h]ad Mr. Buttar been a White male, rather than an immigrant 15 Muslim, the Chronicle would not have recklessly rushed to the publish [the First Article], much 16 less publish it. Instead, the Chronicle would have thoroughly investigated whether or not Ms. 17 Croydon’s allegations were credible.” Compl. ¶ 47. Plaintiffs allege that the First Article 18 “delivered crippling blows to Mr. Buttar’s insurgent campaign,” who was ultimately defeated by 19 Speaker Pelosi, and the false allegations in the First Article “recklessly and unjustly smeared Mr. 20 2 Plaintiffs’ argument that their claims are brought on the print versions of Hearst’s Articles, 21 dated July 22 and 25, 2020, as republications of the online versions of identical articles published online by Defendant the evenings before references the single-publication rule. The single- 22 publication rule deals with calculating the timing of the statute of limitations, which is not at issue here. See, e.g., Traditional Cat Ass’n, Inc. v. Gilbreath, 118 Cal. App. 4th 392, 399-404 (2004) 23 (explaining the historical and legal rationale for California’s adoption of the single-publication rule, describing it as a policy adopted to ensure the meaningful application of statutes of limitation 24 on the timing of libel claims). Plaintiffs do not assert that the content of the online and print publications differs in any way other than the medium. In any event, Plaintiffs’ claims treat the 25 two sets of publications as one and the same, as evidenced by the Complaint’s acknowledgement that Hearst’s first article on this matter was published July 21, 2020, Compl. ¶¶ 2, 15 n.2, and their 26 allegations that Hearst “[made] matters worse” by including in both articles a hyperlink (which are digital links that cannot be included in print publications) to Croydon’s self-published essay on 27 Medium but “did not even provide a hyperlink to the Open Letter.” Opp. 11, 13 (emphasis 1 Buttar’s ethics and integrity, harmed his professional livelihood and personal relationships, 2 slashed his speaking and writing opportunities, and gravely damaged the public’s perception of his 3 fitness to hold political office.” Id. ¶ 51. 4 Plaintiffs allege two causes of action. First, Plaintiffs allege defamation at common law 5 and under Cal. Civ. Code § 45 because the “Chronicle published Ms. Croydon’s false allegations 6 with actual malice,” and “failed to contact individuals. . . [who] would have provided details of 7 Ms. Croydon’s history of lobbing false allegations.” Id. ¶¶ 57-58. Second, Plaintiffs allege a 8 derivative violation of California’s unfair competition law based on Defendant “maliciously 9 defaming Buttar for Congress and Mr. Buttar.” Id. ¶ 65-66. 10 B. Procedural Background 11 Plaintiffs filed the operative complaint on July 20, 2021. Docket No. 1. Now pending is 12 Defendant’s motion to dismiss the complaint and strike it pursuant to California’s anti-SLAPP 13 statute. Docket No. 27 (“Mot.”). 14 III. LEGAL STANDARDS 15 A. Failure to State a Claim (Rule 12(b)(6) 16 Federal Rule of Civil Procedure 8(a)(2) requires a “pleading that states a claim for relief” 17 to include “a short and plain statement of the claim showing that the pleader is entitled to relief.” 18 Fed. R. Civ. P. 8(a)(2). A pleading that fails to meet this standard may be dismissed pursuant to 19 Rule 12(b)(6). See Fed. R. Civ. P. 12(b)(6). To overcome a Rule 12(b)(6) motion to dismiss after 20 the Supreme Court’s decisions in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic 21 Corporation v. Twombly, 550 U.S. 544 (2007), a plaintiff’s “factual allegations [in the pleading] 22 ‘must . . . suggest that the claim has at least a plausible chance of success.’” Levitt v. Yelp! Inc., 23 765 F.3d 1123, 1135 (9th Cir. 2014). The court “accept[s] factual allegations in the [pleading] as 24 true and construe[s] the pleadings in the light most favorable to the nonmoving party.” Manzarek 25 v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). But “allegations in a 26 [pleading] . . . may not simply recite the elements of a cause of action [and] must contain 27 sufficient allegations of underlying facts to give fair notice and to enable the opposing party to 1 Millichap Co., 751 F.3d 990, 996 (9th Cir. 2014)). “A claim has facial plausibility when the 2 Plaintiff pleads factual content that allows the court to draw the reasonable inference that the 3 Defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility 4 standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that 5 a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). 6 B. California’s anti-SLAPP Statute 7 California's anti-SLAPP Statute allows for pre-trial dismissal of “SLAPPs” (“Strategic 8 Lawsuits against Public Participation”). Cal. Civ. Proc. Code § 425.16; Metabolife Int'l, Inc. v. 9 Wornick, 264 F.3d 832, 839 (9th Cir. 2001). The statute aims to identify, early in the litigation 10 process, “meritless first amendment cases aimed at chilling expression through costly, time- 11 consuming litigation.” Metabolife, 264 F.3d at 839. 12 “A court considering a motion to strike under the anti-SLAPP statute must engage in a 13 two-part inquiry.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1110 (9th Cir. 2003). First, the 14 defendant must “make an initial prima facie showing that the plaintiff's suit arises from an act [by 15 the defendant] in furtherance of the defendant's rights of petition or free speech.” Id. (citation 16 omitted). As § 425.16 provides:

17 [An] act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection 18 with a public issue includes:

19 (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official 20 proceeding authorized by law;

21 (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or 22 judicial body, or any other official proceeding authorized by law;

23 (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 24 interest; or

25 (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free 26 speech in connection with a public issue or an issue of public interest. 27 1 Second, where a defendant makes the required prima facie showing, “the burden shifts to 2 the plaintiff to demonstrate a probability of prevailing on the challenged claims.” Vess, 317 F.3d 3 at 1110. If, as here, “a defendant makes an anti-SLAPP motion to strike founded on purely legal 4 arguments, then the analysis is made under Fed. R. Civ. P. 8 and 12 standards.” Planned 5 Parenthood Fed'n of Am., Inc. v. Ctr. for Med. Progress, 890 F.3d 828, 833 (9th Cir.), amended, 6 897 F.3d 1224 (9th Cir. 2018). "If a defendant makes a special motion to strike based on alleged 7 deficiencies in the plaintiff's complaint, the motion must be treated in the same manner as a 8 motion under Rule 12(b)(6)." Id. at 834. Accordingly, the procedural grounds for dismissal under 9 anti-SLAPP are identical to those under Rule 12(b)(6): a plaintiff’s “[f]actual allegations must be 10 enough to raise a right to relief above the speculative level. . . that is, a claim to relief that is 11 plausible on its face.” Twombly, 550 U.S. at 555-56, 569. 12 IV. ANALYSIS 13 A. Section 425.16 Applies to Plaintiffs’ Claims 14 Plaintiffs concede that their claims arising from Defendant’s publication of new articles 15 regarding a public controversy involving a candidate for the U.S. House of Representatives is 16 covered by California’s anti-SLAPP statute, Cal. Civ. Proc. Code § 425.16(e). Docket No. 30 17 (“Opp.”) at 9 n.37 (“Plaintiffs do not dispute that the first prong of the anti-SLAPP analysis has 18 been satisfied.”). Thus, Defendant has made out a prima facie showing that the anti-SLAPP 19 statute applies. Accordingly, the burden shifts to Plaintiffs to demonstrate “a probability of 20 prevailing on the[ir] claim” of defamation. Varian Med. Sys., Inc. v. Delfino, 35 Cal. 4th 180, 192 21 (2005) (citation omitted). 22 B. Sufficiency of Plaintiffs’ Defamation Claim 23 1. Legal Standard for Defamation of a Public Figure by a Newspaper on a Matter of 24 Public Concern 25 To succeed on a defamation claim, the First Amendment and the anti-SLAPP statute place 26 the burden on Plaintiffs to show that each statement which they claim is defamatory is, in fact, 27 materially false in the context of the whole publication. See Phila. Newspapers, Inc. v. Hepps, 1 defamation action against a newspaper by a private person suing over statements of public concern 2 the First Amendment places the burden of proving falsity on the plaintiff. Id. at 768–769; Smith v. 3 Maldonado, 72 Cal.App.4th 637, 646, n.5 (1999). As a matter of constitutional law, therefore, 4 media statements on matters of public interest “must be provable as false before there can be 5 liability under state defamation law.” Milkovich v. Lorain Journal Co, 497 U.S. 1, 18–20 (1990). 6 Plaintiffs’ burden to plead, and prove falsity cannot be satisfied, as a matter of law, if the 7 challenged statements are substantially true, that is, if “the substance, the gist, the sting, of the 8 libelous charge [is] justified.” Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 517 (1991) 9 (citation omitted). In evaluating whether challenged statements are substantially true, a court must 10 examine whether a statement “would have a different effect on the mind of the reader from that 11 which the pleaded truth would have produced.” Id. (citation omitted). Whether a statement 12 contains provably false factual assertions is a question of law for the trial court to decide. Copp v. 13 Paxton, 45 Cal.App.4th 829, 837 (1996). 14 Moreover, the parties are in agreement that Plaintiff Buttar was a public figure at the time 15 of the alleged libelous speech, and, thus, a heightened standard stemming from the First 16 Amendment applies to his common law defamation claim. “If the person defamed is a public 17 figure, he cannot recover unless he proves, by clear and convincing evidence, that the libelous 18 statement was made with “‘actual malice’—that is, with knowledge that it was false or with 19 reckless disregard of whether it was false or not.” Reader's Dig. Assn. v. Superior Ct., 37 Cal. 3d 20 244, 256 (1984) (citing New York Times Co. v. Sullivan, supra, 376 U.S. 254, 285–286 (1964)). 21 In the context of public figure defamation actions, the “clear and convincing standard” requires a 22 showing that the defendant “entertained serious doubts as to the truth of the publication.” Sipple 23 v. Found. For Nat’l Progress, 71 Cal. App. 4th 226, 248 (1999). 24 The heightened standard has teeth at the pleading stage and, thus, in the preliminary 25 context of an anti-SLAPP motion. “[C]ourts have found that general allegations that a defendant 26 should have known or should have investigated the truth of his or her statements do not adequately 27 plead actual malice.” Wynn v. Chanos, 75 F. Supp. 3d 1228, 1239 (N.D. Cal. 2014). As the court 1 claim must be proven by clear and convincing evidence at trial, the sufficiency of the plaintiff’s 2 prima facie showing on an anti-SLAPP motion is determined with the higher standard of proof in 3 mind.” See Nicosia v. De Rooy, 72 F.Supp.2d 1093, 1109 (N.D. Cal. 1999) (“conclusory 4 statements that [a defamation defendant] should have known the truth does not satisfy the 5 heightened pleading standard” of actual malice); Resolute Forest Prods., Inc. v. Greenpeace Int’l, 6 302 F. Supp. 3d 1005, 1019 (N.D. Cal. 2017) (citing Wynn’s description of the actual malice 7 pleading standard as a “demanding burden,” and dismissing defamation complaint, as a matter of 8 law, where plaintiff did not “provide any specific allegations that would support a finding that 9 [defendants] harbored serious subjective doubts as to the validity” of the challenged statements); 10 Tull v. Higgins, No. 21-cv-01566, 2021 WL 6116971, at *9 (N.D. Cal. Dec. 27, 2021) (dismissing 11 defamation claim as a matter of law for failure to adequately plead actual malice, noting that 12 where “allegation lacks supporting details and is entirely conclusory[,] [i]t fails to satisfy the 13 demanding burden of pleading actual malice.”). 14 2. Falsity 15 As an initial matter, Plaintiffs do not plead that any specific statement published by 16 Defendant was false. Rather, Plaintiffs plead generally that they were defamed by the publication 17 “of an article containing” Croydon’s allegations that Buttar sexually harassed her. Compl. ¶¶ 2, 18 56. In an action for defamation implicating the First Amendment, generalized allegations of 19 defamation without specific allegations of the challenged speech are typically insufficient. 20 Flowers v. Carville, 310 F.3d 1118, 1130-31 (9th Cir. 2002) (“We have held that ‘where a plaintiff 21 seeks damages ... for conduct which is prima facie protected by the First Amendment, the danger 22 that the mere pendency of the action will chill the exercise of First Amendment rights requires 23 more specific allegations than would otherwise be required.’”) (quoting Franchise Realty 24 Interstate Corp. v. S.F. Local Joint Executive Bd. of Culinary Workers, 542 F.2d 1076, 1082–83 25 (9th Cir. 1976)); see also Glassdoor, Inc. v. Superior Ct., 9 Cal. App. 5th 623, 636 (2017) (the 26 court “must determine whether a prima facie showing of actionable statements has been made,” 27 noting that it “is impossible to perform such a task without knowing the exact statements on which 1 alleged to be defamatory to determine whether they are “of a character which the principles of the 2 First Amendment . . . protect” (citations omitted)). Plaintiffs neither specifically allege, nor do 3 they argue that have identified any particular published statements that were false. The First 4 Article’s description of the essay containing Croydon’s allegations has not been challenged by 5 Plaintiff as inaccurate. 6 Instead, Plaintiffs’ theory of actionable speech boil down to Defendant’s publication of 7 articles which reported Croydon’s public allegations that Buttar sexually harassed her together 8 with Defendant’s failure to adequately challenge Croydon’s credibility with regard to those 9 allegations. See generally Compl. But for Plaintiffs to plausibly state a claim of defamation under 10 this theory, they must show falsity by alleging facts that demonstrate the gist or sting of the 11 challenged Articles “would have a different effect on the mind of the reader from that which the 12 pleaded truth would have produced.” Masson, 501 U.S. at 517 (citation omitted). To determine 13 the effect of an allegedly libelous statement on a reader, a court must look at the allegedly 14 defamatory statement in the context of the whole publication of which it is a part. Issa v. 15 Applegate, 31 Cal. App. 5th 689, 713-14 (2019); Kaelin v. Globe Commc’ns Corp., 162 F.3d 16 1036, 1040 (9th Cir. 1998) (“[A] defamatory meaning must be found, if at all, in a reading of the 17 publication as a whole. Defamation actions cannot be based on snippets taken out of context.”). 18 Defendant’s First Article reported on (a) the fact that allegations regarding Buttar were 19 made in Croydon’s Essay, a fact pled by Plaintiffs, Compl. ¶ 16; (b) that Buttar had already issued 20 a denial of those allegations in which he explicitly stated that “[e]very survivor must be heard and 21 I hope to be allowed the same opportunity to be heard as well” (emphasis added), Compl. ¶ 18; 22 First Article; and (c) that some political organizations and others who had previously voiced 23 public support for Buttar’s candidacy had already publicly reconsidered that support in light of the 24 allegations, a reality that Buttar acknowledged before Hearst had published on this matter – and 25 Buttar’s acknowledgment was included in the article. First Article (“Buttar said, ‘I invite their 26 examination of the issues and our campaign welcomes any scrutiny.’”). Defendant’s Follow Up 27 Article reported on these same topics in light of the Open Letter, which was published by Buttar 1 several individual who knew Buttar and vouched for his integrity and character. Compl. ¶ 38. 2 Plaintiffs do not plead that the Articles contained any factual inaccuracies in its account of 3 the substance of Croydon’s allegations (apart from their denial of the allegations themselves, 4 which Defendant reported), nor do they allege that Hearst’s reporting on Buttar’s denial of the 5 allegations contained any factual errors. Plaintiffs do not plead that Hearst’s Reporting presented 6 Croydon’s allegations of sexual harassment as statements of fact that Buttar actually harassed 7 Croydon. Nor could they. Hearst’s Reporting does not assert or imply that Croydon’s allegations 8 were anything more than her unproven claims, which were disputed by Buttar. Cf. Thomas v. L.A. 9 Times Commc’ns, LLC, 189 F. Supp. 2d 1005, 1015 (C.D. Cal. 2002) (granting anti-SLAPP 10 motion where article “merely states ‘opinion[s] on matters of public concern that do not constitute 11 or imply a provable factual assertion.’”) (quoting Underwager v. Channel 9 Austl., 69 F.3d 361, 12 366 (9th Cir. 1995). 13 Instead, Plaintiffs’ allegation of falsity is based on Defendant’s failure to do more: 14 Defendant did not interview and quote the Campaign’s preferred sources and did not report on 15 allegations by those sources that Croydon had made false reports of sexual harassment against 16 other individuals in the past. Compl. ¶¶ 21, 43. 17 However, Plaintiffs do not allege that any of their preferred sources could have offered 18 anything but their own speculation about any of Croydon’s allegations against Plaintiff Buttar. 19 Plaintiffs do not allege that those sources had any firsthand knowledge as to the veracity of 20 Croydon’s allegations. There is no allegation that Defendant’s omission of quotations from these 21 sources renders anything in either Article provable as false. Moreover, Plaintiffs fail to 22 demonstrate through their pleading that the inclusion of the opinions of the Campaign’s preferred 23 sources about Croydon’s credibility based on unrelated conduct, in light of the fact that Defendant 24 repeatedly reported Plaintiff Buttar’s denial of the allegations, would have created a “different 25 effect on the reader.” Masson, 501 U.S. at 517 (citation omitted). Accordingly, Plaintiffs 26 pleading of falsity appears problematic. 27 Plaintiffs add two additional claims of falsity specific to the Follow Up Article. First, 1 vouched for Buttar’s integrity in the Open Letter as “Mr. Buttar’s friends, when they are fiercely 2 independent political activists.” Compl. ¶ 42. This allegation is belied by the text of the Follow 3 Up Article. Defendant identified signatories of the Open Letter as “several progressive activists in 4 the Washington area, where Buttar used to live,” and identified a particular signer, “Code Pink 5 cofounder Medea Benjamin, a well-known former Bay Area activist who now lives in the 6 Washington area.” Follow Up Article at 1. It quotes and identifies additional individuals who 7 spoke in support of Buttar, including “Polly Miller, who worked with Buttar on an anti-police- 8 brutality campaign several years ago,” and “Pat Elder, a longtime activist and journalist who has 9 worked with Buttar on a half-dozen wealth inequality and antiwar campaigns.” Id. at 3-4. Thus, 10 there is no substantial basis to Plaintiffs’ assertion that Defendant falsely portrayed the identities 11 and backgrounds of those who expressed support for Buttar. 12 Second, Plaintiffs allege that the Follow Up Article was misleading because, although it 13 reported on the Open Letter, it did not explain that the Open Letter included allegations that 14 “Croydon had a long history of false accusation against political activists” nor did it otherwise 15 “disclose that highly relevant history to Chronicle readers.” Compl. ¶ 43. Again, the Court is 16 skeptical of Plaintiffs’ position that the alleged omissions of allegations against Croydon in 17 unrelated incidents demonstrate that the Follow Up Article reported anything that was provable as 18 false. However, Plaintiffs are correct that the Open Letter did include a section which argues that 19 Croydon (referred to as a “trouble individual”) has a “long history of fabricating attacks against 20 innocent people” and is “an individual with a widely known pattern of marking false accusations.” 21 Ibarguen Decl., Exh. H (“Open Letter”). The Follow Up Article’s summary of the contents of the 22 Open Letter did not include this context. Plaintiffs arguably alleged enough to plead falsity in 23 Defendant’s omission in the Follow Up Article of a reference to public allegations attacking 24 Croydon’s credibility. However, it is unclear whether this alleged omission is enough to show that 25 “the substance, the gist, the sting, of the libelous charge [is] justified,” Masson, 501 U.S. at 517, 26 when considered in context with the Follow Up Article’s reporting on Buttar’s denial of 27 Croydon’s allegations and quotations from several activists who vouched for Buttar’s character 1 Nonetheless, even assuming arguendo that Plaintiffs plausibly alleged falsity, Plaintiffs’ 2 defamation claim still fails because they have not plausibly plead actual malice. 3 3. Actual Malice 4 Plaintiffs fail to plausibly allege facts to show a likelihood that it can satisfy the “clear and 5 convincing” standard to prove actual malice. To do so, Plaintiffs are required to allege facts 6 showing that the Defendant “entertained serious doubts as to the truth of the publication.” Sipple, 7 71 Cal. App. 4th at 248. The only facts Plaintiffs plead to support their actual malice burden boils 8 down to (a) failure by Hearst to contact some individuals identified by Plaintiffs who, according to 9 Plaintiffs, believed Croydon –based on unrelated conduct–to be untrustworthy, and (b) Hearst’s 10 failure to include those individuals’ views about or other public attacks on the character and 11 credibility of Croydon. Compl. ¶¶ 58, 59. These allegations are insufficient, as a matter of law, to 12 satisfy Plaintiffs’ burden of proving actual malice. 13 As an initial matter, Defendant’s editorial decisions as to process and choice of material to 14 include in a news clip is constitutionally protected; disagreement with that process, without more, 15 does not give rise to a claim for defamation. Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 16 258 (1974) (“The choice of material to go into a newspaper, and the decisions made as to 17 limitations on the size and content of the paper, and treatment of public issues and public 18 officials—whether fair or unfair—constitute the exercise of editorial control and judgment.”). 19 There are more specific reasons why actual malice has not been demonstrated. First, 20 Plaintiffs do not plead actual malice by relying on a purported failure to contact certain individuals 21 who, based on the facts pled in the Complaint, lacked any specific or actual knowledge that 22 Croydon’s allegations against Buttar were false. Though the Complaint alleges that these 23 individuals subjectively believed – based on their own interactions with her or with Buttar – that 24 Croydon’s allegations were not credible, the Complaint fails to allege any facts indicating that 25 these individuals (or anyone else not contacted by Hearst) could offer actual knowledge that the 26 specific allegations against Buttar were false. And certainly there is no allegation that Defendant 27 knew that these individuals had actual knowledge. 1 proposed by Plaintiffs is insufficient to demonstrate the articles at issue were published with 2 knowledge of their falsity or reckless disregard for their truth. Reader’s Digest, 37 Cal. 3d at 247 3 (“The failure to conduct a thorough and objective investigation, standing alone, does not prove 4 actual malice, nor even necessarily raise a triable issue of fact on that controversy”); see also 5 Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 688 (1989) (“[F]ailure to investigate 6 before publishing, even when a reasonably prudent person would have done so, is not sufficient to 7 establish reckless disregard”); St. Amant v. Thompson, 390 U.S. 727, 731 (1968) (“[R]eckless 8 conduct is not measured by whether a reasonably prudent man would have published, or would 9 have investigated before publishing. There must be sufficient evidence to permit the conclusion 10 that the defendant in fact entertained serious doubts as to the truth of his publication.”). Here, 11 there is nothing alleged that would rise above, e.g., negligence. Again, nothing in the Open Letter 12 or any other source indicated that any potential source has firsthand knowledge of Croydon’s 13 allegations against Buttar and thus were particularly credible. 14 Third, Plaintiffs’ allegations of deficient reporting stem from an email Buttar’s campaign 15 representative sent to the Chronicle reporter after the First Article was already published, and, 16 thus, cannot serve as a basis for finding actual malice in the publication of the First Article. See 17 Email Correspondence at 6 (ten minutes after First Article was published, offering to connect the 18 newspaper with “some people who can speak about [Mr. Buttar’s] character and other claims [Ms. 19 Croydon] has made in the past that are false – including one who alleges that she also made false 20 claims about her husband. Would you want to speak with them? We are reluctant to attack her 21 character out of respect to survivors . . . but they are willing to speak with you.”). 22 Plaintiffs’ citation to the California Supreme Court’s decision in Khawar v. Globe Int'l, 23 Inc., 19 Cal. 4th 254, 277 (1998) is so far afield from the facts here that it does not affect, let alone 24 alter, the analysis. That case concerned the 1989 re-publication of accusations initially published 25 in a book which sold just 500 copies that the plaintiff assassinated Senator Robert F. Kennedy 26 twenty-one years earlier in 1968. Id. at 259, 266. The court explained that the jury’s actual malice 27 finding was supported by evidence of the extraordinary circumstances of the situation which 1 There were, to say the least, obvious reasons to doubt the accuracy of the. . . accusation that Khawar killed Kennedy. The assassination 2 of a nationally prominent politician, in the midst of his campaign for his party’s nomination for the presidency, had been painstakingly 3 and exhaustively investigated by both the FBI and state prosecutorial agencies. During this massive investigation, these 4 agencies accumulated a vast quantity of evidence pointing to the guilt of Sirhan as the lone assassin. As a result, Sirhan alone was 5 charged with Kennedy’s murder. . . The jury returned a verdict finding beyond a reasonable doubt that Sirhan was guilty of first 6 degree murder. On Sirhan’s appeal from the resulting judgment of death, this court carefully reviewed the evidence and found it 7 sufficient to sustain the first degree murder conviction. In asserting that Khawar, not Sirhan, had killed Kennedy, the [book] was making 8 the highly improbable claim that results of the official investigation, Sirhan’s trial, and this court’s decision on Sirhan’s appeal, were all 9 fundamentally mistaken. Because there were obvious reasons to the doubt the accuracy of the [book’s] central claim. . . the jury could 10 properly conclude that Globe acted with actual malice in republishing that claim if it found also, as it impliedly did, that 11 Globe failed to use readily available means to verify the accuracy of the claim by interviewing obvious witnesses who could have 12 confirmed or disproved the allegations or by inspecting relevant documents or other evidence. 13 14 Id. at 276 (internal citations omitted). The Court further noted that “this was not a situation in 15 which time pressures made it impossible of impractical to investigate the truth of the accusation,” 16 given that the accusation was published 21 years after the assassination when it “had long ceased 17 to be an issue that urgently engaged the public’s attention.” Id. at 277. In light of these 18 circumstances, the Court explained, “Before publishing an article accusing a private figure of a 19 sensational murder, Globe could well have afforded to take the time necessary to investigate with 20 sufficient thoroughness to form an independent judgment before republishing an accusation likely 21 to have a devastating effect on the reputation of the person accused.” Id. 22 The facts of Khawar are fundamentally dissimilar from the allegations here where 23 Defendant published breaking news about allegations regarding a public figure, sought comment 24 from the accused, repeatedly published the accused’s denial of the allegations, and additionally 25 published the views of others who vouched for the accused and supported his denial. Plaintiffs 26 omit all of the relevant factual context underlying the analysis in Khawar and, instead, cherry-pick 27 the final sentence quoted above to imply that the high standard for actual malice is satisfied 1 Opp. at 10-11. Khawar did not announce such a rule. Instead, Khawar explained that a finding of 2 actual malice may be upheld “‘where there are obvious reasons to doubt the veracity of the 3 informant or the accuracy of his reports’, and the republisher failed to interview obvious witnesses 4 who could have confirmed or disproved the allegations or to consult relevant documentary 5 sources.” Id. (quoting Harte-Hanks, 491 U.S. at 682-84) (emphasis added). 6 As the Court of Appeal noted in Widener v. Pac. Gas & Elec. Co., 75 Cal. App. 3d 415, 7 434 (Ct. App. 1977), actual malice “involves a stringent and subjective standard. It is not 8 measured by whether a reasonably prudent person would have published, or would have 9 investigated before publishing. Rather, there must be sufficient evidence to permit an inference 10 that the defendant must have, in fact, subjectively entertained serious doubts as to the truth of his 11 statement.” (Citation omitted.) 12 For the reasons stated above, there were no “obvious reasons to doubt the veracity of” 13 Croydon. Nor is there any allegation of a failure to “interview obvious witnesses who could have 14 confirmed or disproved the allegations.” Id. Defendant did not rely on sources “known to be 15 unreliable,” so as to prove evidence that “publisher himself had serious doubts regarding the trust 16 of his publication.” Reader’s Digest, 37 Cal.3d at 258 (emphasis added). 17 Finally, Plaintiffs plead no facts whatsoever in support of their conclusory allegation that 18 Defendant maliciously published false information based on its motive to discriminate against 19 Plaintiff Buttar for being “an immigrant Muslim.” FAC ¶ 47. 20 Plaintiffs’ defamation claim fails because Plaintiffs do not plausibly allege actual malice. 21 4. Compliance with Cal Civ. Code § 48a 22 Defendant argues a third ground for dismissal of the defamation claim: Plaintiffs’ fail to 23 adhere to the requirements of California’s correction statute, Cal. Civ. Code § 48a, requiring a 24 libel plaintiff seeking to recover general damages from a publisher to serve written notice to the 25 publisher within 20 days of knowledge of the publication, specifying the allegedly libelous 26 statements and demanding correction. Cal. Civ. Code § 48a(a) (“In any action for damages for the 27 publication of a libel in a daily or weekly news publication, or of a slander by radio broadcast, 1 or broadcast, as provided in this section.”); Mot. at 24-27. Failure to serve such a specific and 2 timely demand of correction limits a plaintiff’s recovery, as a matter of law, to recovery of special 3 damages. Id. Special damages are defined in the statute as “damages that plaintiff alleges and 4 proves that he or she has suffered in respect to his or her property, business, trade, profession, or 5 occupation, including the amounts of money the plaintiff alleges and proves he or she has 6 expended as a result of the alleged libel, and no other.” Cal. Civ. Code § 48a(d)(2); Piping Rock 7 Partners, Inc. v. David Lerner Assocs., Inc., 946 F. Supp. 2d 957, 981 (N.D. Cal. 2013) (noting 8 that special damages are actual out-of-pocket losses and must be pled with specificity). Where a 9 plaintiff fails to serve a correction demand and also fails to adequately plead special damages, the 10 claims fail on their face and must be stricken under the anti-SLAPP statute. Anschutz Ent. Grp. v. 11 Snepp, 171 Cal. App. 4th 598, 643 (2009) (dismissing defamation claims under anti-SLAPP where 12 no legally enforceable correction demand was served by the plaintiff and where special damages 13 were pled only through generalized allegations of indeterminate damages and plaintiff “presented 14 no proof of special damages”). 15 Plaintiffs here have neither plead facts demonstrating compliance with the notice 16 requirement of § 48a(a), nor has Plaintiff plead facts sufficient to justify special damages. The 17 Complaint fails to identify any direct communication between Buttar and Defendant Hearst, the 18 publisher, in connection with its reporting on this issue that constitutes a “written notice specifying 19 the statements claimed to be libelous and demanding that those statements be corrected.” Cal. 20 Civ. Code § 48a(a). The only communication Plaintiffs allege was sent to Hearst after publication 21 of its July 21 Article that might have satisfied this requirement is the email sent by a campaign 22 representative to reporter Garofoli at 5:44am on July 22. But, based on Plaintiffs’ own 23 description, that message was sent directly to a reporter (not the publisher, as required by § 48a), 24 and “requested that the Chronicle correct the Original Piece by, inter alia, interviewing 25 individuals ‘closer to this situation’ (such as Dr. Flowers or Ms. Zundmanis).” Compl. ¶ 30. That 26 communication failed to demand any correction of Hearst’s First Article consistent with the 27 requirements of Cal. Civ. Code § 48a. Instead, it sought additional, follow-up coverage of the 1 been ‘left out’ from the Chronicle’s story.” Id.; Email Correspondence at 6 (“Can we do a follow 2 up today or soon? . . . We want to present his story in a way that doesn’t inflame people, but we 3 also want to get it out. We would like a story that offers Shahid the opportunity to give his 4 perspective here. . . Can you advise on what opportunities might be available for that?”). Because 5 the Complaint fails to plead compliance with the correction statute, Plaintiffs are barred from 6 recovering general or exemplary damages. 7 Furthermore, Plaintiffs are barred from any recovery in this action because they also fail to 8 plead any concrete and quantifiable injury or damages sufficient to satisfy the minimum 9 requirements for pleading special damages. See Cal. Civ. Code § 48a(d)(2) (Special damages are 10 “damages that plaintiff alleges and proves that he or she has suffered in respect to his or her 11 property, business, trade, profession, or occupation, including the amounts of money the plaintiff 12 alleges and proves he or she has expended as a result of the alleged libel, and no other.”). 13 Plaintiffs make only generalized allegations of injury purportedly suffered by Buttar individually, 14 and make no allegations of injury specific to the Campaign. See Compl. ¶¶ 51, 53 (alleging 15 Hearst’s reporting caused injury to “Buttar’s ethics and integrity, harmed his professional 16 livelihood and personal relationships, slashed his speaking and writing opportunities, and gravely 17 damaged the public’s perception of his fitness to hold political office” and “effectively deprived 18 [Buttar] of the ability to speak publicly about two critical issues amidst a global pandemic and 19 ominous wildfires: healthcare policy and climate justice.”). These general allegations, lacking 20 specifics as to the amount of money Plaintiff has “expended as a result of the alleged libel,” are 21 insufficient to plead special damages. 22 Finally, Plaintiffs fail to sufficiently plead that any alleged damages are attributable 23 specifically to Defendant Hearst’s articles. This defect is apparent on the face of the Plaintiffs’ 24 complaint based on the allegations that (a) the Croydon Essay was publicly published on Medium 25 before Defendant reported on it, Compl ¶ 16, and (b) several other publications, including the Bay 26 Area Reporter, the Intercept, 48 Hills and Mission Local, all reported on the allegations made 27 against Buttar, id. ¶¶ 27, 37, 39, 49. 1 therefore barred from recovering general damages. And, Plaintiffs have also failed to plead 2 special damages with sufficient specific to plausibly allege an entitlement to special damages. 3 5. Conclusion re: Sufficiency of Defamation Claim 4 As explained above, Plaintiffs fail to state a claim of defamation because (1) they do not 5 plausibly allege actual malice, and (2) they fail to plead compliance with Cal. Civ. Code § 48a or 6 facts sufficient to support claims for special damages and thus are not entitled to any recovery. 7 Accordingly, Plaintiffs’ defamation claim is insufficient as a matter of law. Therefore, Plaintiffs 8 fail to satisfy their burden under California’ anti-SLAPP statute to show a likelihood of success on 9 the merits of their defamation claim, and, thus, Plaintiff’s complaint is dismissed.3 10 C. Leave to Amend 11 Defendant requests that the complaint be stricken and dismissed with prejudice under 12 California’ anti-SLAPP statutes, and that the Court find that Defendant is entitled to an award of 13 fees and costs under the anti-SLAPP statute. Cal. Civ. Proc. Code § 425.16(c)(1). Plaintiffs, 14 however, request leave to amend their complaint–their first complaint–and note the Ninth Circuit 15 has observed that “granting a defendant's anti-SLAPP motion to strike a plaintiff's initial 16 complaint without granting the plaintiff leave to amend would directly collide with Fed. R. Civ. P. 17 15(a)'s policy favoring liberal amendment.” Verizon Delaware, Inc. v. Covad Commc'ns Co., 377 18 F.3d 1081, 1091 (9th Cir. 2004); see also id. (“If the offending claims remain in the first amended 19 complaint, the anti-SLAPP remedies remain available to defendants.”) (emphasis added). Thus, 20 although it appears unlikely that that Plaintiffs will be able to cure the deficiencies in their 21 complaint, in light of the Ninth Circuit’s holding that a Plaintiff in federal court be granted leave 22 to amend their initial complaint before it is dismissed with prejudice under a state law anti-SLAPP 23 statute, the Court grants Plaintiffs leave to amend and withholds ruling that the Defendants are 24 entitled to fees under the anti-SLAPP statute at this juncture. See Sanchez v. Law Office of Armo, 25 No. 1:20-cv-00163-NONE-SKO, 2021 WL 1214559, at *17-18 (E.D. Cal. Mar. 31, 2021) (“Since 26 Defendants’ anti-SLAPP motion is being considered in federal court, and since the Ninth Circuit 27 1 requires that plaintiff be given an opportunity to amend her complaint, the granting in part of 2 Defendants’ motion is considered a ‘technical’ victory that does not warrant an award of 3 attorney’s fees to Defendant as the prevailing party.”) (citing Verizon, 377 F.3d at 1091). The 4 Court notes, however, for the reasons explained above, it would be futile for Plaintiffs to amend 5 their complaint to a state a claim for defamation stemming from the First Article. Thus, to the 6 extent Plaintiffs’ claims stem from the First Article, the claims are dismissed with prejudice. 7 V. CONCLUSION 8 The Court GRANTS Defendant’s motion to dismiss. Docket No. 27. Although it is 9 unclear whether Plaintiffs can cure the deficiencies in their complaint, Plaintiffs are granted leave 10 to amend with regards to their claims stemming from the Follow Up Article. Plaintiffs’ amended 11 complaint must be filed within thirty (30) days from the date of this order. 12 This order disposes of Docket No. 27. 13 14 IT IS SO ORDERED. 15 16 Dated: April 25, 2022 17 18 ______________________________________

EDWARD M. CHEN

19 United States District Judge 20 21 22 23 24 25 26 27