The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
ORDER GRANTING DEFENDANT'S
ANTI-SLAPP MOTION, AND DISMISSING PLAINTIFF'S FIRST AMENDED COMPLAINT WITH PREJUDICE
Defendant moves under California Civil Procedure Code section 425.16 (California's "anti-SLAPP" statute) for an order striking Plaintiff's defamation claim in his First Amended Complaint ("FAC"), which is the sole claim. Plaintiff opposes the motion. Plaintiff's defamation claim concerns Defendant A&E Television Network's ("Defendant") use of a photograph of Plaintiff in a television program called Gangland.
"California's anti-SLAPP statute permits . . . dismiss[al of] meritless defamation cases 'aimed at chilling expression through costly, time-consuming litigation.'" Price v. Stossel, 620 F.3d 992, 999 (9th Cir. 2010) (quoting Metabolife Int'l, Inc. v. Wornick, 264 F.3d 832, 839 (9th Cir. 2001)). This "statute can be invoked by defendants who are in federal court on the basis of diversity jurisdiction." Id. Subject matter jurisdiction over this action is based upon diversity of citizenship.
When deciding an anti-SLAPP motion "the court . . . engage[s] in a two-step process." Equilon Enters. v. Consumer Cause, Inc., 29 Cal. 4th 53, 67 (2002).
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 . . . free speech under the United States or California Constitution in connection with a public issue," as defined in the statute.
Id. (quoting CAL. CIV. PROC. CODE § 425.16(b)(1)). "The phrase 'act . . . in furtherance of the person's right of . . . free speech under the United States or California Constitution in connection with a public issue' is defined by four specific categories of communications." Hilton v. Hallmark Cards, 599 F.3d 894, 903 (9th Cir. 2010) (citing CAL. CIV. PROC. CODE § 425.16(e)(1)-(4)). The relevant category in this case "is the fourth, catch-all category: 'any other conduct in furtherance of the exercise of the . . . constitutional right of free speech in connection with a public issue or an issue of public interest.'" Id. (quoting CAL. CIV. PROC. CODE § 425.16(e)(4)).
Second, "[i]f the court finds . . . a showing [under step one] has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim." Equilon, 29 Cal. 4th at 67.
"[T]he plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant; though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim."
Manufactured Home Cmtys., Inc. v. Cnty. Of San Diego, --- F.3d ----, 2011 WL 3771277, at *4 (9th Cir. 2011) (quoting Wilson v. Parker, Covert & Chidester, 28 Cal. 4th 811, 821 (2002)).
Gangland is a "documentary television series" that Defendant airs on one of its cable television networks. (Decl. of Douglas S. Kneissl in Supp. of Def.'s Mot. to Strike ("Kneissl Decl.") ¶ 4.) Gangland "explores the history of some of America's most notorious gangs and the efforts of law enforcement agencies to stop them." (Decl. of Julie Hughes in Supp. of Def.'s Mot. to Strike ¶ 3.) The episode of Gangland at issue is titled "Snitch Slaughter" (hereinafter referred to as "the episode"). Defendant lodged a Digital Video Disc copy and transcript of the episode with the Court. This evidence is part of the record concerning the anti-SLAPP motion and has been considered.
The episode profiles a gang called the Vagos Outlaw Motorcycle Club ("Vagos Gang"). The Vagos Gang is described in the episode as "one of America's biggest biker gangs" whose members "commit robberies," "rapes," and "murders." The episode describes the history and traditions of the Vagos Gang, and how some of its members act as informants for law enforcement agencies. A Vagos Gang member named Lonesome is interviewed periodically in the episode. Lonesome is described as a "thief," "assassin," and "professional snitch with deep ties to the law." Lonesome is donning a short, brown, goatee-style mustache and beard in the episode. He also is wearing a bandana on top of his head and sunglasses.
The only depiction of Plaintiff in the episode is in a photograph of Plaintiff standing next to Yak Yak, the Vagos Gang's Sacramento Chapter President. Plaintiff is not mentioned by name during the episode. The photograph is shown briefly twice in the episode. In this photograph, Plaintiff and Yak Yak are facing the camera, and Yak Yak's arm is around Plaintiff's shoulder. Plaintiff's eyes and the area surrounding his eyes are covered by a black bar, and Plaintiff is donning a long, white beard and is wearing a black top hat. Yak Yak has a shorter beard and is wearing a bucket hat. Yak Yak's face is not covered by a black bar in any way, but he is wearing sunglasses. Plaintiff alleges: "The . . . ...