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Todd v. Lovecruft

United States District Court, N.D. California

January 6, 2020

PETER TODD, Plaintiff,



         On April 3, 2019, Plaintiff Peter Todd filed a complaint asserting diversity jurisdiction and alleging a state law claim for defamation against Defendant Isis Agora Lovecruft.[1] [Docket No. 1 (“Compl.”).] On July 15, 2019, Lovecruft filed this motion to strike the complaint pursuant to California's anti-SLAPP statute, California Code of Civil Procedure § 425.16 et seq. [Docket Nos. 20 (“Mot.”), 31 (“Reply”).] Todd timely opposed. [Docket No. 23 (“Opp.).] The court heard oral argument. Following the hearing, the court ordered supplemental briefing, which the parties filed on September 12, 2019 and September 19, 2019. [Docket Nos. 49-52.] Having considered the parties' briefing and submissions, Lovecruft's motion is granted in part and denied in part.

         I. BACKGROUND

         A. The Parties

         The following facts are taken from the record. Where indicated, the court cites allegations in the complaint to provide background information. Todd is a developer of cryptocurrency and blockchain software. Compl. ¶ 15; Docket No. 24, Declaration of Peter Todd in Opposition to Motion to Strike (“Todd Decl.”) ¶ 2. He also works as an applied cryptography consultant. Compl. ¶ 1. Todd regularly speaks at conferences around the world regarding his work in cryptography. Id. ¶¶ 1, 17. He has a large online following, and regularly posts to his account on Twitter under the handle @peterktodd. Id. ¶ 19. Todd avers that he is “highly-regarded in the cryptography and cryptocurrency sectors” and that his reputation, including his online reputation, “are important aspects of his standing in the cryptography community and his ability to maintain his consulting profession.” Id. ¶¶ 16, 19.

         Lovecruft is a cryptographer and computer security expert. Lovecruft Decl. ¶ 2. They provide “expertise and consultancy services to clients, ” and attend and speak at conferences centering around cryptography, digital privacy, and security. Id. Lovecruft formerly worked as a senior developer for the Tor Project, a non-profit digital privacy organization. Id. Todd and Lovecruft met in summer 2014 and have been acquaintances for years. Compl. ¶¶ 3, 24; Lovecruft Decl. ¶ 3. They sometimes attend the same conferences and have interacted at these events. Compl. ¶¶ 23, 26; Lovecruft Decl. ¶ 3. Between 2014 and 2016, Todd and Lovecruft “spent time together socially on a few occasions” and also communicated with each other online. Compl. ¶¶ 27-28; Lovecruft Decl. ¶ 3. Lovecruft states that, prior to the events that gave rise to the current lawsuit, they considered Todd a “professional acquaintance, but not a close friend.” Lovecruft Decl. ¶ 3. According to Lovecruft, the parties have never been in a sexual or romantic relationship. Id. Todd characterizes the parties' early relationship as a friendship. Todd Decl. ¶ 8.

         B. Fall 2014 Encounter

         Lovecruft claims that in 2014, Todd “began making explicit, verbal sexual advances toward [them] during conferences and meetings” and “typically did so quietly in order to not be heard by others present.” Lovecruft Decl. ¶ 4. Lovecruft “expressly and repeatedly informed him that his advances were unwelcome” but his behavior continued. Id. According to Lovecruft, Todd sent an email in September 2015 inviting them to meet in-person to discuss a security question. Id. ¶ 5. Lovecruft agreed and met Todd at the Workshop Café in San Francisco. Id. Lovecruft testifies that Todd repeatedly interrupted the meeting to make “explicit, verbal sexual advances” which they found “offensive and degrading.” Id. ¶¶ 5-6. Lovecruft left the meeting, telling Todd that they were going to get food, and Todd followed without an invitation. Id. ¶ 7. According to Lovecruft, the parties ordered food at a taqueria, and then Lovecruft attempted to walk away. Id. ¶ 8. Lovecruft claims that Todd continued to follow and make sexual advances despite Lovecruft's repeated refusals. Id. At some point, Todd allegedly told Lovecruft that they were going back to his hotel and grabbed Lovecruft's arm. Id. Lovecruft shoved him away and told him, “I'm going home, don't follow me.” Id. Lovecruft avers that Todd then stopped following them. Id.

         Lovecruft states that the encounter left them upset and angry, and that they “walked randomly and aimlessly around San Francisco for several hours” to collect themself and make sure that Todd had stopped following them. Lovecruft Decl. ¶ 9. After that event, Lovecruft began avoiding Todd, such as by lying to him about their whereabouts when he would attempt to make contact. Id. ¶ 10. In December 2018, Lovecruft privately told another individual about Todd's sexual advances, but did not publicize the accusations at the time “in order to avoid further personal tension or professional drama.” Id. ¶¶ 13-14, see id., Ex. 2 (Twitter direct message dated December 5, 2018).

         Todd disputes Lovecruft's account of their encounter in San Francisco. He states that he was in San Francisco in August 2015, not September as Lovecruft claims. Todd Decl. ¶ 14. He confirms they met in the Workshop Café during that visit. Id. ¶ 15. He says that the parties “briefly discussed computer code” and that when the café closed, they went to a taqueria together. Id. He testifies that the two of them ate together in the public courtyard of the Social Security Administrative building and discussed personal and professional matters while they ate. Id. Lovecruft fed spare nachos to rats. Id. After they finished eating, Lovecruft allegedly hailed a cab, stating they were going home, and Todd walked to a friend's house where he was staying. Id. He contends that during this time, he “made no sexual statements to Lovecruft or anybody else” and “did not initiate any physical contact with Lovecruft.” Id. According to Todd, the parties regularly communicated with each other publicly and privately after this interaction, and that Lovecruft's communications with him “reflected no fear or dislike.” Id. ¶ 16. Two days after the event, Lovecruft allegedly invited him to the beach and also their apartment to watch cartoons and drink alcohol. Id. Within the following months, Lovecruft allegedly interacted with Todd and invited him to “hang out” when they attended a conference in Germany in September and October 2015. Id. ¶ 18. After that time, the parties allegedly continued to communicate about a variety of personal and professional topics. Id. ¶ 19.

         C. The Applebaum Controversy

         Lovecruft maintains a Twitter account and has over 20, 000 followers. Compl. ¶¶ 29, 43. They claim that in late May 2016, other individuals began making allegations of sexual assault against a third party, Jacob Applebaum, a cryptography expert who also worked for the Tor Project. Id. ¶ 29; Lovecruft Decl. ¶ 15. Lovecruft publicly called for accountability for Applebaum and “participated in the broader discussions around predatory male behavior” in the cryptography field. Lovecruft Decl. ¶ 15. On June 15, 2016, Lovecruft allegedly tweeted that Applebaum had sexually assaulted them. Compl. ¶ 29. They also published an internet post documenting their experience with Applebaum. Lovecruft Decl. ¶ 15; id., Ex. 3 (internet posting dated June 13, 2016). Lovecruft claims that they have been subjected to “extensive and ongoing harassment and threats” because of their public statements about Applebaum. Id. ¶ 16; id., Ex. 7 (tweet dated October 11, 2016).

         Todd claims that he initially published statements to Lovecruft “commending [them] on [their] bravery and denouncing sexual violence.” Compl. ¶ 30. Then in August 2016, Todd tweeted that he “did not know what was true regarding [Lovecruft's] and other's allegations against Applebaum.” Id. ¶ 41; Lovecruft Decl., Ex. 8 (tweets by Todd dated June 9, 2016 and June 26, 2016). He also tweeted, “See, as a relative outsider to that community I can't tell what is true and what isn't. That's a big problem.” Todd Decl. ¶ 22; id. Ex. E (tweet dated August 18, 2016). Around that same time, Lovecruft allegedly blocked Todd from viewing their Twitter profile. Compl. ¶ 32.

         In May 2017, Todd communicated with Lovecruft through Github, a “professional platform designed for public software development.” Compl. ¶ 33. He claims that he asked Lovecruft a question about a software programming issue. Id. ¶ 33. Lovecruft responded as follows:

First things first: @petertodd, you've publicly, repetitively defended a man who raped me and several other people, and disparaged the victims who were brave enough to come forward with their stories. Do not speak to me. Do not use work as an excuse to speak to me. Do not use cryptography as an excuse to speak to me.

Id. ¶ 34; Lovecruft ¶ 18. Todd claims that he did not initiate any contact, in-person or online, with Lovecruft after this exchange. Id. ¶ 35.[2]

         D. Doe Allegations

         In July 2017, Lovecruft told Brian Wilcox, a friend and fellow cryptographer, about their negative experiences with male predatory behavior in the cryptography community. Lovecruft Decl. ¶ 19. Wilcox testifies that he has personally witnessed Todd making unwelcome sexual advances on women. [Docket No. 20-2, Declaration of Brian Wilcox in Support of Motion to Strike (“Wilcox Decl.”) ¶ 4.] He confirms that Lovecruft told him that Todd harassed and intimidated them. Id. ¶ 5. Around February 2018, Wilcox connected Lovecruft with two women who reported that Todd had engaged in sexual misconduct toward them. Id. ¶ 7; Lovecruft Decl. ¶ 20. One woman, anonymously identified as Jane Doe, reached out to Lovecruft over the Signal messaging platform. Lovecruft Decl. ¶ 20.

         Doe submitted a partially redacted anonymous declaration confirming this conversation. [Docket No. 30-3, Declaration of Jane Doe in Support of Motion to Strike (“Doe Decl.”).] Lovecruft's counsel Ben Rosenfeld testifies that he personally spoke to Doe and prepared the declaration on her behalf. [Docket No. 20-4, Declaration of Ben Rosenfeld in Support of Motion to Strike (“Rosenfeld Decl.”) ¶ 2.] Lovecruft initially filed the declaration with their motion, and the signature line was endorsed by the declarant as Jane Doe. [Rosenfeld Decl., Ex. A.] They later filed an administrative motion to seal the declaration because portions of it, specifically the name of the city in which the events described occurred, could potentially identify the anonymous declarant. [Docket No. 22.] Lovecruft filed a slightly modified version of the declaration on reply.[3] This version contains a redaction as to the name of the city in which the alleged encounter took place and the redacted name and signature of the declarant.[4]

         On February 15, 2018, Lovecruft and Doe allegedly discussed their mutual experiences with Todd. Lovecruft Decl. ¶ 20; Doe Decl. ¶ 3. During that conversation, Doe explicitly told Lovecruft that Todd had raped her. Doe Decl. ¶ 3. She informed Lovecruft that she and Todd met in Germany. Id. Doe states that she suffers from a neurological sleep disorder and was also sleep deprived on the day that she met with Todd. Id. While she and Todd were walking together, her knees buckled as she began experiencing symptoms of her disorder. Id. She told Todd the symptoms he could expect to see, such as cognitive defects and temporary paralysis, and Todd suggested they go to the nearest hotel for her to sleep off the symptoms. Id. Doe testifies that she went up to Todd's room and attempted to sleep on the couch so as not to send Todd any “wrong signals, ” but he “physically crowded [her] and badgered [her] into sleeping in his bed.” Id. Once Doe laid down on the bed, Todd allegedly got into bed next to her. Id. She states that she fell asleep and woke up sometime later, still under effects of her sleep condition. Id. She let Todd take her to dinner, after which she felt “a sense of obligation to hang out with him a little longer because he had paid for dinner.” Id. They went back up to his hotel room, where Doe testifies that Todd “began pushing [her] physical boundaries” again, although she attempted to leave several times. Id. She states that she realized she could not leave and gave up resisting, and that she “consider[s] what happened next rape.” Id. Doe told Lovecruft that she locked herself in the bathroom afterward and cried for hours. Id. She also told Lovecruft that she had heard accounts from three or four other people who experienced sexual harassment by Todd. Lovecruft Decl. ¶ 21.

         Lovecruft states that they believed Doe's account of the incident for several reasons. First, Lovecruft states that they “believe rape victims, ” citing to reports and studies by “the BBC, FBI [and] CDC” that conclude that false rape allegations make up as low as 1.5% of all rape allegations. Lovecruft Decl. ¶ 22. Lovecruft also represents that they believed Doe because Doe provided “extensive details of her encounter” with Todd; because Doe corroborated the stories Lovecruft had heard from others about Todd; and because of Lovecruft's own experience with Todd and similarities between their encounters. Id. Lovecruft admits that they made each of the statements quoted in the complaint, and that they continue to believe the truth of each statement. Id. ¶ 25.

         E. The Statements

         Todd identifies Wilcox as the founder and CEO of Zcash, a cryptocurrency business, and states that Lovecruft has done work for that business. Todd Decl. ¶ 24. On May 14, 2018, Todd published a tweet criticizing the security of Zcash. Id. ¶ 25; id., Ex. G (tweet dated May 14, 2018). Within hours of Todd's tweet, Lovecruft tweeted:

peter todd is complete trash, and not just for his idiotic takes on privacy and security, he's also an abuser who doesn't seem to understand the word ‘no' and harasses rape victims (and he's managed to be the only person I've ever had to block on github).

Id., Ex. H (tweet dated May 14, 2018). Todd testifies that he criticized Zcash again on February 5, 2019. Id. ¶ 27; id., Ex. I (tweets dated February 5, 2019).

         Within the same month, Lovecruft made four statements (the “Statements”) on their Twitter feed that accused Todd of committing sexual misconduct and rape against Lovecruft and others. Compl. ¶¶ 36-39. On February 5, 2019, the same day Todd posted the second criticism of Zcash, Lovecruft tweeted:

This is not even touching upon the stories of the rape and assault survivors of you and @petertodd and @ioerror [Applebaum's Twitter account] and you all have been seen to behave conveniently alike and seen to dutifully protect one another [upside-down smiley face emoji].

Id. ¶ 36; Todd Decl., Ex. A. Upon viewing the tweet in the context of the relevant portions of Lovecruft's Twitter feed, it becomes clear that the “you” in “rape and assault survivors of you” is third party Nadim Kobeissi, who submitted a declaration attesting that Lovecruft falsely accused him of engaging in sexual misconduct toward Lovecruft and others. [Docket No. 27, Declaration of Nadim Kobeissi in Opposition to Motion to Strike (“Kobeissi Decl.”) ¶¶ 6-10.][5] However, this tweet also refers to Todd and Applebaum. Lovecruft tweeted again on February 8, 2019, stating:

i love watching the men in my industry who've sexually abused me and many others squirm as I take them out one by one while they nervously await their turn [¶] hahahahahahahaha eat goat dung you epoxy brained cowards

         Todd Decl., Ex. A. Lovecruft's tweet on February 20, 2019 reads:

Nadim Kobeissi is a serial rapist and abuser who defends other rapists including Jacob Appelbaum and Peter Todd and in 2012 he grabbed my face and force kissed me at a conference and i absolutely believe the multiple survivors I've personally spoken with since then

Id. Later that day, another user asked Lovecruft, “Peter todd is a rapist?” Id. Lovecruft tweeted in response:

yes, similar to Nadim, i personally have a story about Peter Todd and i've personally spoken with survivors with absolutely awful and horrifying reports who are terrified of him and of coming forward (rightly so) [¶] i however am not afraid and shitty dudes are going down


         Todd asserts that the Statements “contain and comprise false assertions of fact, ” because he has not sexually assaulted or raped Lovecruft or anyone else. Compl. ¶¶ 40-42. He claims that Lovecruft knew the Statements were false when Lovecruft made them, or alternatively, that Lovecruft acted “in reckless disregard of the falsity of [their] Statements when [Lovecruft] published them.” Id. ¶ 45. He also alleges that “[n]umerous people have viewed [Lovecruft's] Statements, and numerous people have publicly commented on [the] Statements.” Id. ¶ 44. According to Todd, the Statements remain publicly viewable on Lovecruft's Twitter account. Id. ¶ 46. He also contests the facts presented in the Doe declaration, and states that he believes Lovecruft and possibly Wilcox “fabricated the declaration of Jane Doe.” Todd Decl. ¶ 33. He testifies that he “did not rape, assault, or coerce anybody into having sex” with him. Id.

         F. Claims

         Todd brings a state law defamation claim against Lovecruft. Compl. ¶¶ 49-61. He alleges that Lovecruft published the Statements “willfully and maliciously with the intent to harm [him], ” and that as a result he has suffered “shame, embarrassment, hurt feelings, anxiety, mortification, embarrassment, [] loss [of] reputation among his friends, peers, and in his professional community, ” and has also lost professional opportunities such as invitations to speak at conferences. Id. ¶¶ 58- 60. He is seeking a permanent injunction requiring Lovecruft to remove the allegedly defamatory Statements from their Twitter account, and an award of damages, including compensatory and punitive damages, costs of suit, and pre-judgment interest. Compl. at 8.


         Known as the “anti-SLAPP” statute, [6] California Code of Civil Procedure section 425.16 “was enacted to allow early dismissal of meritless first amendment cases aimed at chilling expression through costly, time-consuming litigation.” Jordan-Benel v. Universal City Studios, Inc., 859 F.3d 1184, 1188 (9th Cir. 2017) (quoting Metabolife Int'l, Inc. v. Wornick, 264 F.3d 832, 839 (9th Cir. 2001)). The statute provides that a claim against an individual “arising from any act of that person in furtherance of the person's right of petition or free speech” under the federal or California constitutions “shall be subject to a special motion to strike . . . .” Cal. Civ. Proc. Code § 425.16(b)(1).

         Under California law, “[t]he analysis an anti-SLAPP motion proceeds in two steps.” Iglesia Ni Cristo v. Cayabyab, No. 18-cv-00561-BLF, 2019 WL 3997474, at *2 (N.D. Cal. Aug. 23, 2019) (quoting Barry v. State Bar of California, 2 Cal. 5th 318, 321 (2017)). First, the court determines whether the plaintiff's claims are directed at “an act in furtherance of protected expression.” Metabolife, 264 F.3d at 840 (citing Cal. Civ. Proc. Code § 425.16(b)). The moving defendant bears the burden of “identifying all allegations of protected activity, and the claims for relief supported by them.” Baral v. Schnitt, 1 Cal. 5th 376, 396 (2016). At the second step, the burden shifts to the plaintiff to show a “reasonable probability of prevailing in its claims.” Metabolife, 264 F.3d at 840. The plaintiff must demonstrate that “each challenged claim based on protected activity is legally sufficient and factually substantiated.” Baral, 1 Cal. 5th at 396.

         A district court sitting in diversity must apply the federal standard for such motions. The tension in applying anti-SLAPP laws in federal court arises from the doctrine expressed in Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938); namely, that federal courts sitting in diversity apply state law to matters of substance, but federal law governs matters of procedure. See Hanna v. Plumer, 380 U.S. 460, 473 (1965). California's anti-SLAPP law contains several provisions that give heightened protection to anti-SLAPP defendants, including the availability of a special motion to strike, interlocutory appeals, attorneys' fees and costs, and a stay on discovery. See Cal. Code Civ. Proc. § 425.16. Whether any of these provisions are procedural and conflict with the Federal Rules of Civil Procedure has been “hotly disputed.” Planned Parenthood Fed'n of Am., Inc. v. Ctr. for Med. Progress, 890 F.3d 828, 833 (9th Cir. 2018).

         The Ninth Circuit first considered the federal application of California's anti-SLAPP law in U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963 (9th Cir. 1999). In that case, the district court refused to apply section 425.16, finding that the provisions permitting a special motion to strike and allowing the recovery of attorneys' fees and costs directly conflicted with Federal Rules 8, 12, and 56. Id. at 972. On appeal, the Ninth Circuit determined that those provisions and the Federal Rules “can exist side by side . . . each controlling its own intended sphere of coverage without conflict.” Id. (quoting Walker v. Armco Steel, 446 U.S. 740, 752 (1980)). The court found that although the anti-SLAPP statute and the Federal Rules “serve similar purposes, namely the expeditious weeding out of meritless claims before trial, ” there is not a direct collision between those authorities because “there is no indication that Rules 8, 12, and 56 were intended to ‘occupy the field' with respect to pretrial procedures aimed at weeding out meritless claims.” Id. It also held that the “twin aims” of Erie (“discouragement of forum-shopping and avoidance of inequitable administration of the law”) weighed in favor of applying California's anti-SLAPP statute in federal court. Id. at 973 (quoting Hanna, 380 U.S. at 468). Accordingly, the court reversed the district court and affirmed the availability of anti-SLAPP motions in federal court. Id.

         The Ninth Circuit revisited the anti-SLAPP statute two years later in Metabolife. Metabolife reaffirmed Newsham in finding that the provisions regarding a special motion to strike and the availability of attorneys' fees and costs are applicable in federal court. 264 F.3d at 845. However, the court determined that two other provisions of the statute, subsections 425.16(f) and (g), conflict with the Federal Rules and cannot be applied in federal diversity cases. Id. at 486. These rules relate to the discovery stay provisions of California's anti-SLAPP law: subsection 425.16(f) provides that an anti-SLAPP motion may be filed within sixty days of the filing of the complaint (or any later date, at the court's discretion), and subsection 425.16(g) automatically stays all discovery until the court rules on the anti-SLAPP motion. Id. Metabolife examined these provisions in light of Rule 56's requirement that “adequate discovery will occur before summary judgment is considered, ” and concluded that the “discovery-limiting aspects of [subsections] 425.16(f) and (g) collide with the discovery-allowing aspects of Rule 56” and therefore cannot apply in federal court. Id. (quoting Rogers v. Home Shopping Network, Inc., 57 F.Supp.2d 973, 982-83 (C.D. Cal. 1999)).

         The anti-SLAPP statute came before the Ninth Circuit again in Makaeff v. Trump Univ., LLC, 715 F.3d 254 (9th Cir. 2013). There, the court applied the burden-shifting framework of section 425.16 in reviewing a district court's denial of an anti-SLAPP motion. 715 F.3d at 261. Makaeff is of particular interest in that it showcases some of the conflicting views of the applicability of anti-SLAPP motions among circuit jurists. In a concurring opinion, Judge Kozinski agreed that the majority “faithfully applies [the] law” as articulated in Newsham but wrote separately to opine that Newsham is “wrong and should be reconsidered.” Id. at 272 (Kozinski, J., concurring). He reasoned that Rules 12 and 56 already provide procedural mechanisms for disposing of claims before trial, and section 425.16 impermissibly alters the federal scheme by allowing a defendant to “get a case dismissed for factual insufficiency while concealing evidence that supports [the] plaintiff's case.” Id. at 274. He concluded that California's anti-SLAPP law “has no application in federal court.” Id. at 273. The Ninth Circuit declined to reconsider Makaeff en banc. Makaeff v. Trump University, LLC, 736 F.3d 1180 (9th Cir. 2013). In dissent to that decision, Judge Watford agreed with Judge Kozinski that the state statute conflicts with Federal Rules 12 and 56. Id. at 1188. He opined that an anti-SLAPP motion to strike conflicts with Rule 12 in that it “impose[s] a probability requirement at the pleading stage, ” and conflicts with Rule 56 because it “requir[es] the plaintiff to prove that she will probably prevail if the case proceeds to trial-a showing considerably more stringent than identifying material factual disputes that a jury could reasonably resolve in the plaintiff's favor.” Id. at 1189.

         The Ninth Circuit most recently addressed California's anti-SLAPP statute in Planned Parenthood, where it discussed a tension between the state law and federal procedure. When a defendant files an anti-SLAPP motion in California state court, “[a]ll discovery proceedings in the action” are stayed and the discovery stay “remain[s] in effect until notice of the entry of the order ruling on the motion.” Cal. Code Civ. Proc. § 425.16(g). However, in federal court, “[r]equiring a presentation of evidence without accompanying discovery would improperly transform the motion to strike . . . into a motion for summary judgment without providing any of the procedural safeguards that have been firmly established by the Federal Rules of Civil Procedure.” Planned Parenthood, 890 F.3d at 833-34. The court held that preserving the discovery stay aspect of section 425.16 “would effectively allow the state anti-SLAPP rules to usurp the federal rules” and that the court cannot “properly allow such a result.” Id. at 834. Accordingly, Planned Parenthood set forth the standard that district courts must now apply in evaluating anti-SLAPP motions:

If a defendant makes an anti-SLAPP motion to strike founded on purely legal arguments, then the analysis is made under [Rule] 8 and 12 standards; if it is a factual challenge, then the motion must be treated as though it were a motion for summary judgment and discovery must be permitted.

Id. at 833 (quoting Z.F. v. Ripon Unified School District, 482 Fed. App'x 239, 240 (9th Cir. 2012)). For purely legal challenges, there is no need for the party opposing the motion to “submit evidence showing the merit of their claims.” Id. at 834. For factual challenges, “discovery must be allowed, with opportunities to supplement evidence based on the factual challenges, before any decision is made by the court.” Id.

         In this case, Lovecruft's motion contains both legal and factual challenges to the complaint. At the hearing, the court informed the parties that it would decide the legal challenges under Rule 12 standards, as directed by Planned Parenthood, but that the factual challenges were premature as no discovery had yet taken place. Both parties represented to the court that they waived the right to conduct discovery and requested that the court rule on the merits of the entire anti-SLAPP motion. The court ordered the parties to submit supplemental briefing on Planned Parenthood and required the parties to explain their positions, citing relevant federal authority, on how to apply the Planned Parenthood framework to the current motion. The central concern of the court's inquiry was whether Planned Parenthood's direction to treat an anti-SLAPP motion with factual challenges as a motion for summary judgment eliminated California's two-prong burden-shifting approach in favor of Rule 56's “genuine dispute of material fact” standard.

         Upon reviewing the parties' supplemental briefs as well as pre- and post-Planned Parenthood federal authority, the court finds that Planned Parenthood did not eliminate the evidentiary burden applied by California's anti-SLAPP statute. Notably, that case does not mention or address whether there is a conflict between section 425.16's “reasonable probability” standard and Rule 56's “genuine dispute of material fact” standard.

         Several other Circuits have addressed this question directly and have found that similar state anti-SLAPP statutes impermissibly alter the Rule 56 standard. For example, the D.C. Circuit addressed the issue in Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328 (D.C. Cir. 2015) and determined that the District of Columbia anti-SLAPP statute's “likelihood of success standard is different from and more difficult for plaintiffs to meet than the standards imposed by Federal Rules 12 and 56.” 783 F.3d at 1335. It held that the state law “conflicts with the Federal Rules by setting up an additional hurdle a plaintiff must jump over to get to trial, ” and therefore could not be applied in federal court. Id. at 1334, 1337. Similarly, in Carbone v. Cable News Network, Inc., 910 F.3d 1345 (11th Cir. 2018), the Eleventh Circuit held that Georgia's anti-SLAPP statute does not apply in federal court. The court determined that the statute's motion-to-strike procedure conflicts with Rule 56 because it “contemplates a substantive, evidentiary determination of the plaintiff's probability of prevailing on his claims, ” while Rule 56 only requires the nonmovant to “designate specific facts showing that there is a genuine issue for trial.” 910 F.3d at 1350-51 (citations and quotation marks omitted). The Fifth and Tenth Circuits have also found a conflict between state anti-SLAPP laws and the Federal Rules of Civil Procedure. See Klocke v. Watson, 936 F.3d 240, 245 (5th Cir. 2019), as revised (Aug. 29, 2019) (“Because the [Texas anti-SLAPP law's] burden-shifting framework imposes additional requirements beyond those found in Rules 12 and 56 and answers the same question as those rules, the state law cannot apply in federal court.”); Los Lobos Renewable Power, LLC v. Americulture, Inc, 885 F.3d 659, 673 (10th Cir.), cert. denied sub nom. AmeriCulture, Inc. v. Los Lobos Renewable ...

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