The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER GRANTING DEFENDANTS' MOTION TO STRIKE WITH LEAVE TO AMEND
Plaintiff Henry Lee Wallace filed a defamation action in state court against author Jeff Henderson and his publishers Harper Collins and William Morrow, an Imprint of Harper Collins Publishers. The action was removed to this court based on diversity jurisdiction pursuant to 28 U.S.C. Sections 1332 and 1441. Plaintiff alleges he is one of the individuals portrayed in Mr. Henderson's autobiography and that his description is defamatory. Defendants filed a motion to strike pursuant to Section 425.16 of California Code of Civil Procedure. Plaintiff filed an opposition. For the reasons which follow, Defendants' special motion to strike is GRANTED WITH LEAVE TO AMEND.
Mr. Henderson's book describes his transformation from a felon to an award-winning chef. At issue is a paragraph in Mr. Henderson's book which describes his life in prison where Plaintiff was also incarcerated. Plaintiff claims that the following paragraph refers to him:
Back in the unit, this OG dude named Love Bug let us know he had some heat for us if we needed it, but I didn't want to be caught holding a shank. Love Bug was huge, could bench four hundred pounds easy, and was the governor of the yard -- and he was a gump. He would wear a T-shirt tied up under his chest like a woman and skintight dolphin shorts with his cheeks hanging out the bottom, and he always wore extra Vaseline on his lips. He was running his own store out of three lockers. If you were broke, he'd give you a pack of smokes, and you would have to give him back two. If you didn't pay him back, he'd make you let him give you head.
Jeff Henderson, Cooked 107 (William Morrow 2007). Plaintiff claims that he is Love Bug and that the paragraph is defamatory because it portrays him as possessing and distributing fire arms to other inmates and forcing inmates to engage in sexual acts in exchange for goods.
California substantive law*fn1 applies in this diversity action. See Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). Defendants moved to strike the complaint pursuant to California Code of Civil Procedure Section 425.16 ("Anti-SLAPP Motion"). California legislature enacted section 425.16 ("Anti-SLAPP Law") to stem "a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances." Cal. Code Civ. Proc. § 425.16(a). Based on policy considerations, section 425.16 is construed broadly. Id. Under the statute,
[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.. § 425.16(b)(1). Defendants argue the action is barred because it is baseless and arises out of and is based on communications in furtherance of their constitutional right to free of speech in connection with an issue of public interest. Id. § 425.16(e)(4).
"[D]efendants sued in federal courts can bring anti-SLAPP motions to strike state law claims." Verizon Del., Inc. v. Covad Commc'ns Co., 377 F.3d 1081, 1091 (9th Cir. 2004). However, procedural requirements under California law are "not used in federal court if to do so would result in a direct collision with a Federal Rule of Civil Procedure." Id. (for example, "granting a defendant's anti-SLAPP motion to strike a plaintiff's initial complaint without granting the plaintiff leave to amend would directly collide with [Rule] 15(a)'s policy favoring liberal amendment").*fn2
Ruling on an anti-SLAPP motion entails a two-step process:
First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant's burden is to demonstrate that the act or acts of which the plaintiff complains were taken in furtherance of the defendant's right of petition or free speech.... If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.
Equilon Enters, LLC v. Consumer Cause, Inc., 29 Cal.4th 53, 67 (2002) (internal quotation marks, citations and brackets omitted).
First, Defendants must make a "threshold showing" "that the act or acts of which the plaintiff complains were taken in furtherance of the [defendant's] right of petition or free speech under the United States or California Constitution in connection with a public issue [or an issue of public interest]." Hilton v. Hallmark Cards, __ F.3d __, 2010 WL 1039872 at 5 (9th Cir. Mar. 23, 2010) (brackets in original), quoting Equilon Enters., 29 Cal.4th at 67. Specifically, Defendants must show that the sale of Mr. Henderson's book was "in connection with a public issue or an issue of public interest." See Hilton, 2010 WL 1039872 at 6.
The Anti-SLAPP Law protects four categories of acts. See Cal. Code Civ. Proc. § 425.16(e). Defendants argue that this case fits into the fourth category, which applies to "any... conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." Id. § 425.16(e)(4). Plaintiff disputes that Mr. Henderson's book relates to an issue of public interest.
"Issue of public interest" is not defined in the statute and "[t]he California Supreme Court has not clearly established what constitutes an issue of public interest...." Hilton, 2010 WL 1039872 at 6. The decisions of California Courts of Appeal on this issue are divergent. See id. at 8 n.10. It is undisputed that Mr. Henderson's book was successfully distributed and attained the status of a New York Times Bestseller. The court must therefore conclude that it was a topic of widespread public interest. See Kronemyer v. Internet Movie Data Base, Inc. 150 Cal. App. 4th 941, 949 (2007) (information ...