1 2 3 4 5 BROWN WHITE & OSBORN LLP KENNETH P. WHITE (Bar No. 173993) 333 South Hope Street, 40th Floor Los Angeles, California 90071-1406 Telephone: 213. 613.0500 Facsimile: 213.613.0550 kwhite@brownwhitelaw.com Attorneys for Defendant JOHN DOE 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF LOS ANGELES 10 11 JAMES WOODS, 12 Case No. BC589746 Plaintiff, Assigned to: Hon. Mel Recana 13 14 v. JOHN DOE, ET AL., DEFENDANT JOHN DOE’S: 15 Defendants. 1. NOTICE OF MOTION AND SPECIAL TO MOTION STRIKE [CODE CIV. PROC. § 4251.6]; 16 17 2. 18 DECLARATION OF KENNETH P. WHITE; AND 19 3. EXHIBITS 20 21 Date: Time: Dept.: 22 February 2, 2016 8:30 a.m. 45 23 24 25 26 PLEASE TAKE NOTICE that on February 2, 2016, at 8:30 a.m., or as soon thereafter as 27 the matter may be heard, in Department 45 of the above-entitled Court, located at 111 North Hill 28 1 DEFENDANT JOHN DOE’S NOTICE OF MOTION AND SPECIAL TO MOTION STRIKE 1329511.1 y?n Street, Los Angeles, CA 90012, Defendant John Doe (?Mn Doe?) will and hereby does move the Court for an order striking the entire Complaint pursuant to Code of Civil Procedure section 425.16. This Special Motion to Strike is made on the grounds that Plaintiff James Woods? Woods?) claims for defamation and false light invasion of privacy constitute a strategic lawsuit against public participation within the meaning of Code of Civil Procedure section 425.16. That statute protects conduct in furtherance of the exercise of the constitutional right of free speech. (Code Civ. Proc., 425.16, subd. Mr. Doe?s speech is protected by the statute and Mr. Woods cannot show a probability of prevailing on the merits. Mr. Doe?s Special Motion to Strike is based on this Notice, the Memorandum of Points and CD Authorities attached hereto, the Declaration of Kenneth P. White and the exhibits ?led concurrently p?l i?n herewith, the records and pleadings on ?le herein, and on such other evidence as may be presented. p?l Dated: September 1, 2015 Respectfully submitted, U.) BROWN WHITE OSBORN LLP .. P. WHITE Attorneys for Defendant John Doe p-L r?nn?n BEGWN wr-nrs aossomDEFENDANT JOHN NOTICE OF MOTION AND SPECIAL TO MOTION STRIKE 11?l??11 I 1 TABLE OF CONTENTS Page 2 3 I. INTRODUCTION ...................................................................................................... 1  4 II. STATEMENT OF RELEVANT FACTS ................................................................... 2  5 6 A. Twitter Is A Social Media Platform Known For Hyperbole and Insult .......... 2  B. Mr. Woods Is Known For Hyperbole and Insult On Twitter .......................... 3  C. Mr. Doe Is Also Known For Blunt Rhetoric And For Insulting Political Figures ............................................................................................................. 5  D. Mr. Woods Sent A Political Tweet, Mr. Doe Insulted Him In Response ....... 6  7 8 9 10 III. ARGUMENT .............................................................................................................. 7  11 A. California’s Anti-SLAPP Statute Protects Mr. Doe’s First Amendment Rights From Plaintiff’s Frivolous Assault ....................................................... 7  B. The Complaint Arises From Mr. Doe’s Protected Speech, Triggering the Anti-SLAPP Statute ......................................................................................... 8  C. Mr. Woods Cannot Prevail Because The Challenged Language Is Hyperbole, Not A Statement of Provable Fact ................................................ 9  12 13 14 15 16 17 1. Only Statements of Provable Fact, Not Hyperbole and Insult, Can Be Defamatory ...................................................................................... 9  2. Mr. Doe’s Tweet Was Hyperbole And Insult, Not A Statement of Provable Fact ...................................................................................... 12  18 19 20 21 D. IV. Mr. Doe is Entitled To His Attorney Fees ..................................................... 15  CONCLUSION ......................................................................................................... 16  22 23 24 25 26 27 28 i DEFENDANT JOHN DOE’S NOTICE OF MOTION AND SPECIAL TO MOTION STRIKE 1329511.1 1 TABLE OF AUTHORITIES Page 2 3 4 Cases  American Humane Ass'n v. Los Angeles Times Communications, (2001) 92 Cal.App.4th 1095 ..................................................................................... 15 5 6 7 Beilenson v. Superior Court, 44 Cal.App.4th 944 (1996) ....................................................................................... 14 Bentley Reserve L.P. v. Papaliolios (2013) 218 Cal.App.4th 418 ...................................................................................... 12 8 9 10 Brill Media Co., LLC v. TCW Group, Inc., (2005) 132 Cal.App.4th 324 ....................................................................................... 7 Chaker v. Mateo (2012) 209 Cal.App.4th 1138 .................................................................................... 12 11 12 13 Cross v. Cooper (2011) 197 Cal.App.4th 357 ....................................................................................... 9 Ferlauto v. Hamsher (1999) 74 Cal.App.4th 1394 ............................................................................... 11, 12 14 15 16 Gilbert v. Sykes (2007) 147 Cal.App.4th 13 ......................................................................................... 8 Governor Gray Davis Committee v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449 ....................................................................................... 7 17 18 19 Greenbelt Co-op. Pub. Ass'n v. Bresler (1970) 398 U.S. 6 ...................................................................................................... 10 Greenbelt Pub. Assn. v. Bresler (1970) 398 U.S. 6 ...................................................................................................... 10 20 21 22 Gregory v. McDonnell (1976) 17 Cal.3d 596 .................................................................................... 10, 11, 13 HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204 ....................................................................................... 8 23 24 25 Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154 ........................................................................ 11, 14, 15 Martinez v. Metabolife Intern., Inc. 113 Cal.App.4th 181(2003) .................................................................................... 8, 9 26 27 28 McClatchy Newspapers, Inc. v. Superior Court (1987) 189 Cal.App.3d 961 ...................................................................................... 15 Morningstar, Inc. v. Superior Court (1994) 23 Cal.App.4th 676 ....................................................................................... 10 ii DEFENDANT JOHN DOE’S NOTICE OF MOTION AND SPECIAL TO MOTION STRIKE 1329511.1 1 TABLE OF AUTHORITIES Page 2 3 4 Moyer v. Amador Valley J. Union High School Dist. (1990) 225 Cal.App.3d 722 ...................................................................................... 10 Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027 ..................................................................................... 9 5 6 7 Paterno v. Superior Court th (2008) 163 Cal.App.4 1342 .................................................................................... 10 Premier Med. Mgmt. Systems, Inc. v. California Ins. Guar. Ass’n (2006) 136 Cal.App.4th 464 ....................................................................................... 8 8 9 10 Rosenauer v. Scherer (2001) 88 Cal.App.4th 260 ........................................................................................ 10 Rudnick v. McMillan (1994) 25 Cal.App.4th 1183 ..................................................................................... 10 11 12 13 Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798 ........................................................................... 10, 13, 14 Standing thCommission on Discipline v. Yagman (9 Cir. 1995) 55 F.3d 1430 ..................................................................................... 10 14 15 16 Summit Bank v. Rogers (2012) 206 Cal.App.4th 669 ................................................................................ 11, 14 Tamkin v. CBS Broadcastingth (2011) 193 Cal.App.4 133 ...................................................................................... 15 17 18 19 Troy Group, Inc. v. Tilson (C.D. Cal. 2005) 364 F.Supp.2d 1149 ...................................................................... 10 U.S. v. Bradbury (N.D. Ind., May 22, 2015) 2015 WL 244964 ............................................................. 3 20 21 22 United States v. Cassidy (D.Md. 2011) 814 F.Supp.2d 574 ............................................................................... 3 Vogel v. Felice (2005) 127 Cal.App.4th 1006 ..................................................................................... 8 23 Statutes  24 Code Civ. Proc. § 425.16, subd. (a) ....................................................................................... 9 25 Code Civ. Proc., § 425.16 ...................................................................................................... 7 26 Code Civ. Proc., § 425.16, subd. (b)(1) ................................................................................. 7 27 Code Civ. Proc., § 425.16, subd. (b)(2) ................................................................................. 7 28 Code Civ. Proc., § 425.16, subd. (c) ...................................................................................... 8 iii DEFENDANT JOHN DOE’S NOTICE OF MOTION AND SPECIAL TO MOTION STRIKE 1329511.1 1 TABLE OF AUTHORITIES Page 2 Code Civ. Proc., § 425.16, subd. (e) ...................................................................................... 8 3 Code Civ. Proc., § 425.16, subd. (e)(3), (4) ........................................................................... 9 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iv DEFENDANT JOHN DOE’S NOTICE OF MOTION AND SPECIAL TO MOTION STRIKE 1329511.1 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. 3 4 INTRODUCTION Plaintiff James Woods (“Mr. Woods”), a celebrity, aggressively exercises his First Amendment rights on the social media platform Twitter. 5 From his Twitter account @RealJamesWoods, Mr. Woods gleefully calls people “clown” and 6 “scum.”1 He fantasizes about killing a man over an offensive shirt.2 He portrays immigrants as 7 obedient Democratic voters or as tattooed thugs.3 He angrily calls Al Sharpton a “disgusting pig” who 8 is responsible for the murder of policemen.4 When other Twitter users disagree with him, Mr. Woods 9 declares that they must be on crack cocaine.5 Accused of rudeness, he calls the accuser a “disgusting, 10 reprehensible liar.”6 When he finds a Rolling Stone profile of the Boston Marathon Bomber 11 unsatisfying, Mr. Woods rages that the publisher – who is gay -- must be masturbating to the image of 12 the terrorist.7 Faced with the existence of gay Americans like Defendant John Doe (“Mr. Doe”)8, Mr. 13 Woods is scornful: he uses accusations of homosexuality as an insult and derides the notion that gay 14 Americans seek equal dignity.9 15 Mr. Doe agrees that this speech, however vile, is fully protected by the First Amendment. 16 Regrettably Mr. Woods’ commitment to the First Amendment stops at his own keyboard. When Mr. 17 Doe responded to one of Mr. Woods’ provocative tweets with an insult, rather than respond with more 18 words Mr. Woods brought this thoroughly frivolous and censorious lawsuit. Mr. Woods did so even 19 though the hyperbolic insult – that Mr. Woods is a “cocaine addict” – is exactly the sort of rhetorical 20 flourish Mr. Woods himself uses all the time,10 and in fact is a frequently employed in-joke on 21 22 1 Exhibits E-3, E-4 to Declaration of Kenneth P. White (“White Decl.”). Exhibits E-7 to White Decl. 3 Exhibits E-8, E-9 to White Decl. 4 Exhibit E-12 5 Exhibits E-1, E-2 to White Decl. 6 Exhibit E-10 to White Decl. 7 Exhibits E-11, E-13, E-14 to White Decl. 8 Mr. Doe is appearing anonymously, as the law permits. (See, e.g., Digital Music News LLC v. Superior Court (2014) 226 Cal.Ap.4th 216, 228.) 9 Exhibits E-5, E-6, E-13, E-14 to White Decl. 10 Exhibits E-1, E-2 to White Decl. 2 23 24 25 26 27 28 1 DEFENDANT JOHN DOE’S NOTICE OF MOTION AND SPECIAL TO MOTION STRIKE 1329511.1 1 Twitter.11 Like a bully who can dish it out but can’t take it, Mr. Woods uses his wealth and fame to 2 abuse the court system in order to punish and bully an obscure and much less powerful Twitter user 3 who taunted him. Fortunately California’s anti-SLAPP statute12 protects Mr. Doe – and anyone whose speech 4 5 annoys James Woods – from vexatious and ruinously expensive litigation. 6 Mr. Doe carries his initial burden under § 425.16 with ease: his speech is on a public forum, 7 Twitter, and is on a subject of public interest, a political argument with a celebrity. But Mr. Woods 8 cannot possibly carry his burden of showing a probability of prevailing. Mr. Doe’s “cocaine addict” 9 jab at Mr. Woods was classic rhetorical insult and hyperbole, not a provable statement of fact. In 10 determining whether a statement is protected rhetoric or unprotected fact, California courts look at the 11 totality of the circumstances, and especially at the context of the statement and how its intended 12 audience would interpret it. Here every relevant factor shows that the “cocaine addict” tweet was mere 13 insult and “lusty and imaginative expression of contempt,” not a statement of provable fact. It was 14 uttered on Twitter, a platform known for insult and exaggeration. It was uttered by an anonymous 15 account known for hyperbole to an account known for hyperbole. It employed a widely used Twitter 16 “meme” to insult Mr. Woods. Most importantly, as Mr. Woods himself angrily emphasizes, it was part 17 of a pattern of insults directed at Mr. Woods based on his political views. Under well-established 18 California law, it was protected by the First Amendment, and Mr. Woods cannot prevail. 19 20 This Court should strike the Complaint entirely and award Mr. Doe his attorney fees. Thanks to the anti-SLAPP statute, the wealthy and famous cannot silence the weak. 21 22 II. A. STATEMENT OF RELEVANT FACTS Twitter Is A Social Media Platform Known For Hyperbole and Insult Twitter is a social media platform – a way for users to interact through the internet. Users have 23 24 usernames starting with an “@” sign, like Mr. Woods with @RealJamesWoods and Mr. Doe with 25 @AbeListed. Users can make statements called “tweets,” which are brief expressions of up to 140 26 27 11 12 28 Exhibits C-1 to C-2 to White Decl. Code Civ. Proc. § 425.16. All statutory references herein are to the California Code of Civil Procedure unless otherwise noted. 2 DEFENDANT JOHN DOE’S NOTICE OF MOTION AND SPECIAL TO MOTION STRIKE 1329511.1 1 characters that may include images, video, or links. Anyone who “follows” a user’s Twitter account 2 will see the tweets that user sends. Twitter user “A” can also “retweet” Twitter user “B’s” tweet, 3 copying it so that “A’s” own followers see it as well. Twitter users can direct a tweet at another user by 4 adding their Twitter username in the tweet. (White Decl. at ¶¶ 7-17; United States v. Cassidy (D.Md. 5 2011) 814 F.Supp.2d 574, 576.) Mr. Woods sues over such an exchange, in which he sent a tweet and 6 Mr. Doe responded to him by using @RealJamesWoods. (Exhibit A to White Decl.) 7 Twitter is known for hyperbole, overheated rhetoric, and ad hominem attacks. It’s “notorious 8 for spreading misinformation.”13 It’s also known for being relentlessly insulting: “the Twitter universe 9 is never happier than when it's being snarky, or downright nasty, to someone.”14 One court, in noting 10 the difficulty of distinguishing between hyperbole and a true threat online, noted “[a] lot of people 11 spout off online via Twitter, Facebook and other social media.” (U.S. v. Bradbury (N.D. Ind., May 22, 12 2015) 2015 WL 2449641, at *3.) 13 B. Mr. Woods Is Known For Hyperbole and Insult On Twitter 14 Mr. Woods epitomizes the rough-and-tumble tone of Twitter. 15 Mr. Woods has been called “Obama’s biggest Twitter troll”15 and a “prolific, highly articulate, 16 and politically incorrect conservative voice on Twitter.”16 He has suggested publicly on Twitter that 17 his vocal conservative advocacy will cost him work in Hollywood,17 and has explained that he 18 19 20 21 22 23 24 25 26 27 28 13 Rutkin, Twitter Bots Grow Up and Take Over the World (July 30, 2014) New Scientist [retrieved from https://www.newscientist.com/article/mg22329804-000-twitter-bots-grow-up-and-take-on-theworld/ as of July 27, 2015.] 14 Gross, Study: Twitter Opinions Don’t Match the Mainstream (March 4, 2013) CNN.com [retrieved from http://www.cnn.com/2013/03/04/tech/social-media/twitter-reactions-public-opinion/ as of July 27, 2015]. 15 Suebsang, How James Woods Became Obama’s Biggest Twitter Troll (December 31, 2014) Daily Beast [retrieved from http://www.thedailybeast.com/articles/2014/12/31/how-james-woods-becameobama-s-biggest-twitter-troll.html as of July 27, 2015.] 16 Treacher, James Woods: I’ll Probably Never Work In That Town Again (October 9, 2013) Daily Caller [retrieved from http://dailycaller.com/2013/10/09/james-woods-ill-probably-never-work-inthat-town-again/#ixzz3k38zCMXD as of July 27, 2015.] 17 “Woods, who recently appeared in White House Down and Jobs, was replying to a tweet that questioned the wisdom of his outspoken declarations. "I don't expect to work again. I think Barack Obama is a threat to the integrity and future of the Republic. My country first." Pulver, James Woods Claims Hollywood Is Against Him After Anti-Obama Tweets (October 10, 2013) The Guardian [retrieved from http://www.theguardian.com/film/2013/oct/10/james-woods-tweets-barack-obama as of July 27, 2015.] 3 DEFENDANT JOHN DOE’S NOTICE OF MOTION AND SPECIAL TO MOTION STRIKE 1329511.1 1 expresses himself on Twitter to avoid mainstream media “editorializing.”18 On occasion, he retweets 2 the vulgar and abusive insults directed at him.19 3 4 Mr. Woods earned this reputation. He routinely engages in political hyperbole and exaggeration on Twitter:  5 6 Mr. Woods uses terms like “clown” and “scum” to deride people with whom he disagrees. (Exhibits E-3, E-4 to White Decl.).  7 Mr. Woods called the controversial Al Sharpton a “disgusting pig” and said that he was 8 “DIRECTLY responsible for the murder of two good policemen.” (Exhibit E-12 to White 9 Decl.)  10 Mr. Woods posted a picture of a man wearing a shirt that appears to celebrate the 9/11 11 attacks and stated “I could shoot this guy in the head and sleep like a baby.” (Exhibit E-7 to 12 White Decl.)  13 When Rolling Stone published a profile of the Boston Marathon Bomber and featured his 14 picture on the cover, Mr. Woods launched an angry tirade, suggesting that publisher Jann 15 Wenner – who is gay -- harbored “erotic fantasies” about the domestic terrorist and was 16 “whacking off” to him, and that Wenner was a “disgusting piece of shit” who made the 17 bomber into a “dreamboat homoerotic fantasy.” (Exhibits E-11, E-13, and E-14 to White 18 Decl.)  19 The homophobic quality of Mr. Woods’ Wenner tweets are typical. On another occasion, 20 Mr. Woods sneered at Justice Kennedy’s statement “gays ask for equal dignity in the eyes of 21 the law” by posting a picture of explicit conduct by nearly-naked men at a gay pride parade. 22 (Exhibit E-6 to White Decl.)  23 24 Mr. Woods expresses his hostility for illegal immigration, posting pictures of immigrants as “undocumented Democrats on their way to America’s voting booths” and suggesting that 25 18 26 27 28 Twitch.com, ‘For the Record’: James Woods Explains Why He’s Giving Up on The MSM and Sticking To Twitter (October 11, 2013) [retrieved from http://twitchy.com/2013/10/11/for-the-recordjames-woods-explains-why-hes-giving-up-on-the-msm-and-sticking-to-twitter/ as of July 27, 2015.] 19 Twitchy.com, ‘Unending Stream of Mindless Bile’: James Woods Retweets Liberal Followers, (August 8, 2014) [retrieved from http://twitchy.com/2014/08/08/unending-stream-of-mindless-bilejames-woods-retweets-liberal-followers/ as of July 27, 2015.] 4 DEFENDANT JOHN DOE’S NOTICE OF MOTION AND SPECIAL TO MOTION STRIKE 1329511.1 1 illegal immigrants are not children worthy of sympathy but menacing tattooed gang 2 members. (Exhibits E-8 and E-9 to White Decl.)  3 When questioned or insulted, Mr. Woods throws a rhetorical elbow right back. When a 4 Twitter user called him a “dick,” Mr. Woods rejoined that “dick” was a “menu choice” for 5 the insulter. (Exhibit E-5 to White Decl.) When another user used the same insult and 6 claimed that Mr. Woods wouldn’t take a picture with her, Mr. Woods called her a 7 “disgusting, reprehensible liar.” (Exhibit E-10 to White Decl.). 8 Mr. Woods’ odd combativeness obviously wasn’t meant to go unnoticed, and it doesn’t. 9 Perhaps because he has portrayed drug users during his long and successful acting career, and perhaps 10 11 because his Twitter persona seems manic, for several years Twitter users have routinely joked that Mr. Woods is on cocaine. Exhibits C1 through C10 are ten different examples of Twitter users reacting to Mr. Woods’ diatribes with that “you’re on coke” insult. That vivid insult – “your political views 12 suggest you are on drugs” -- is a staple of American rhetorical life.20 In fact, Mr. Woods has 13 repeatedly used the insult himself – the very insult that he now sues over. (Exhibits E-1, E-2 to White 14 Decl.) 15 C. Mr. Doe Is Also Known For Blunt Rhetoric And For Insulting Political Figures Mr. Doe is not rich or famous like Mr. Woods. He polices Twitter expression he doesn’t like 16 17 through responsive speech, not through expensive lawsuits. People who follow his Twitter account 18 @AbeListed would be familiar with his blunt and abrasive style of insulting political opponents, often 19 directing his insults at their Twitter accounts. For example:  20 In response to a tweet by Donald Trump advancing the notion that President Obama was not 21 born in the United States, Mr. Doe snarked “the new Klan will have orange hair.” (Exhibit 22 D-1 to White Decl.) Mr. Doe later called Trump and conservative writer Rich Lowry 23 (called out specifically as @RichLowry) “the United Racists of America” and joked that 24 they were actually Democratic agents working to alienate the Latino vote from the GOP. 25 (Exhibit D-2 to White Decl.) He exaggerated, arguably, by suggesting that Glenn Beck’s 26 political views showed a need for anti-psychotic medication. (Exhibit D-7 to White Decl.) 27 20 28 It is not clear why Mr. Woods, who makes homophobic comments on Twitter, has singled out Mr. Doe, a vocal gay rights activist, as the one Twitter user to sue over this joke. 5 DEFENDANT JOHN DOE’S NOTICE OF MOTION AND SPECIAL TO MOTION STRIKE 1329511.1  1 Mr. Doe’s remarks often included the rhetorical trope of suggesting that alcohol or drugs 2 produced the political positions he didn’t like. In response to a post criticizing President 3 Obama, Mr. Doe mocked former Reagan speechwriter Peggy Noonan as “hitting the gin 4 again” and asked if she “read any Pew polls between cocktails.” (Exhibit D-4 to White 5 Decl.) Similarly, when Liz Cheney suggested that Sarah Palin was more qualified than 6 President Obama, Mr. Doe asked “what drugs is Liz Cheney on?” (Exhibit D-8 to White 7 Decl.)  8 9 As Mr. Woods angrily reveals in the Complaint, Mr. Doe has insulted Mr. Woods before, calling him “ridiculous scum clown-boy James, a joke.” (Exhibit B to White Decl.)  10 A gay rights activist, Mr. Doe is particularly vigorous in attacking Twitter users and public 11 figures who engage in homophobia. When evangelist Franklin Graham called for a boycott 12 of LGBT-friendly companies Mr. Doe called him a “two-bit huckster.” (Exh. D-5 to White 13 Decl.) Regarding Justice Scalia, who penned dissents to recent gay rights decisions, Mr. 14 Doe offered the colorful if incoherent insult “why can’t I inject Scalia with an admixture of 15 Breitbart’s recycled cholesterol and Ben Shapiro’s colorless piss,” referring to two 16 prominent conservative commentators. (Exhibit D-9 to White Decl.) 17 D. 18 Mr. Woods Sent A Political Tweet, Mr. Doe Insulted Him In Response Mr. Woods is suing Mr. Doe over a July 15, 2015 Twitter exchange. It began when Mr. Woods 19 tweeted “USATODAY app features Bruce Jenner’s latest dress selection, but makes zero mention of 20 Planned Parenthood baby parts market.” (Exhibit A to White Decl.) To Mr. Doe, Mr. Woods tweet – 21 which deliberately called the transgendered woman Caitlyn Jenner by her former name and tied her to 22 an unrelated political controversy about abortion – was the latest in a pattern of aggressive homophobic 23 tweets. So he responded with an insult – an insult commonly directed at Mr. Woods on Twitter as an 24 in-joke (Exhibits C1-10 to White Decl.), and an insult Mr. Woods has employed himself (Exhibits E-1 25 and E-2 to White Decl.). He responded “cocaine addict James Woods still sniffing and spouting.” 26 (Exhibit A to White Decl.) 27 28 The screenshot of the tweet submitted by Mr. Woods shows that one person “favorited” Mr. Doe’s insult. (Exhibit A.) It would have been visible to Mr. Doe’s followers and potentially to anyone 6 DEFENDANT JOHN DOE’S NOTICE OF MOTION AND SPECIAL TO MOTION STRIKE 1329511.1 1 who searched for the terms within it. (White Decl. at ¶¶ 16-17.) It would not have automatically 2 displayed to Mr. Woods’ followers, unless they also followed Mr. Doe. (Ibid.) 3 In response Mr. Woods has sued Mr. Doe for defamation and false light invasion of privacy. 4 Mr. Woods focuses on the “cocaine addict” tweet, but also complains bitterly that Mr. Doe has engaged 5 in “rantings” and “childish name calling” and has called him things like “joke” and “ridiculous” and 6 “scum” and “clown-boy.” (Complaint at ¶¶ 1,8.) 7 III. 8 9 ARGUMENT The Court should strike Mr. Woods’ complaint under California’s anti-SLAPP statute. Mr. Doe easily carries his burden under the first prong of the anti-SLAPP test; his speech is in a public forum 10 and on a matter of public interest. But Mr. Woods cannot carry his burden: because Mr. Doe’s tweet is 11 rhetorical hyperbole plainly protected by the First Amendment, Mr. Woods’ attempt to abuse the courts 12 to censor Mr. Doe must fail. 13 A. California’s Anti-SLAPP Statute Protects Mr. Doe’s First Amendment Rights From 14 Plaintiff’s Frivolous Assault 15 California’s anti-SLAPP statute helps defend against the “disturbing increase in lawsuits 16 brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and 17 petition for the redress of grievances.” (§ 425.16.) An anti-SLAPP motion like this one triggers a two- 18 step process. 19 First, Mr. Doe must make a prima facie showing that the conduct cited in the Complaint 20 concerns or arises from “any act of that person in furtherance of the person's right of petition or free 21 speech under the United States Constitution or the California Constitution in connection with a public 22 issue.” (§ 425.16, subd. (b)(1); Governor Gray Davis Committee v. American Taxpayers Alliance 23 (2002) 102 Cal.App.4th 449, 458–59.) In determining whether Mr. Doe has sustained his initial 24 burden, the Court considers the pleadings, declarations and matters that may be judicially noticed. (§ 25 425.16, subd. (b)(2); Brill Media Co., LLC v. TCW Group, Inc., (2005) 132 Cal.App.4th 324, 329.) 26 Second, once Mr. Doe carries his burden (as he easily does), the burden shifts to Mr. Woods to 27 show that he has a probability of prevailing on his claim. (§ 425.16, subd. (b)(1); Premier Med. Mgmt. 28 Systems, Inc. v. California Ins. Guar. Ass’n (2006) 136 Cal.App.4th 464, 476 [“plaintiff must 7 DEFENDANT JOHN DOE’S NOTICE OF MOTION AND SPECIAL TO MOTION STRIKE 1329511.1 1 demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie 2 showing of facts to sustain a favorable judgment”].) Mr. Woods’ burden “resembles the burden he 3 would have in fending off a motion for summary judgment or directed verdict.” Gilbert v. Sykes 4 (2007) 147 Cal.App.4th 13, 53. He must therefore submit admissible evidence to oppose an anti- 5 SLAPP motion. (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.) If Mr. 6 Woods can’t even state a cause of action, he by definition can’t meet this standard. (Vogel v. Felice 7 (2005) 127 Cal.App.4th 1006, 1017 plaintiff cannot show a probability of success where claim is 8 legally insufficient on its face]). 9 If Mr. Woods cannot carry his burden, the Court must strike the Complaint and award attorney 10 fees and costs to Mr. Doe. (§ 425.16, subd. (c).) 11 B. The Complaint Arises From Mr. Doe’s Protected Speech, Triggering the Anti-SLAPP 12 Statute 13 Mr. Doe easily carries his burden under the first prong of the anti-SLAPP statute. That statute 14 applies to the following expression: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (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 interest; (4) or any other 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. (§ 425.16, subd. (e) [emphasis added].) 15 16 17 18 19 20 It does not matter what guise or cause of action Mr. Woods uses to attack the protected 21 22 expression. If the factual conduct described in the Complaint falls into one of these categories, it 23 triggers the anti-SLAPP statute. (Martinez v. Metabolife Intern., Inc. (2003) 113 Cal.App.4th 181, 187 24 [“a plaintiff cannot avoid operation of the anti-SLAPP statute by attempting, through artifices of 25 pleading, to characterize an action as a ‘garden variety breach of contract [or] fraud claim’ when in fact 26 the liability claim is based on protected speech or conduct.”].) Therefore it applies both to Mr. Woods’ 27 defamation claim and to his claim styled as “false light invasion of privacy.” 28 8 DEFENDANT JOHN DOE’S NOTICE OF MOTION AND SPECIAL TO MOTION STRIKE 1329511.1 1 Here, Mr. Woods’ own complaint demonstrates that Mr. Doe’s challenged tweet was both a 2 statement on a matter of public interest in a public forum and an exercise of his right to free speech on 3 an issue of public interest. (§ 425.16, subd. (e)(3), (4).) First, the Complaint demonstrates that Twitter is a public forum – Mr. Woods describes how 4 5 6 7 8 9 hundreds of thousands of users read his statements there. (Complaint at ¶1.) Anyone can sign up for Twitter, make statements there, and read other people’s statements. (White Decl. at ¶ 8.) Second, the exchange between Mr. Woods and Mr. Doe was a quintessential matter of public interest. A matter of public interest is “any issue in which the public is interested.” Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1042 [story about a celebrity’s conduct was a matter of public interest]; Cross v. Cooper (2011) 197 Cal.App.4th 357, 372-73. In this case the exchange arose 10 when Mr. Woods tweeted about two issues of public interest – the recent highly publicized gender 11 transition of Caitlyn Jenner and controversial abortion videos. (Exhibit A.) In the tweet that is the 12 basis for this lawsuit, Mr. Doe responded with an insult directed to Mr. Woods, who is a self-described 13 “world-renowned award-winning actor.” (Ibid.; Complaint at ¶ 3.) Moreover, as is noted above, Mr. Woods’ penchant for rough-and-tumble exchanges on Twitter has already been the subject of numerous 14 media reports.21 This is more than enough, especially in light of the Legislature’s instructions that 15 courts interpret the anti-SLAPP statute broadly. (Martinez, supra, 113 Cal.App.4th 181, 187; § 425.16, 16 subd. (a).) Mr. Doe has therefore made a prima facie showing that his challenged expression is covered by 17 18 the anti-SLAPP statute. The burden now shifts to Mr. Woods to show a probability of prevailing. 19 Because Mr. Doe’s tweet was so clearly rhetorical hyperbole and not a provable statement of fact, Mr. 20 Woods cannot prevail. 21 C. Mr. Woods Cannot Prevail Because The Challenged Language Is Hyperbole, Not A 22 Statement of Provable Fact 23 Mr. Woods can’t carry his burden because he is suing over a tweet that is clear rhetorical 24 hyperbole, and therefore absolutely protected by the First Amendment. 25 1. Only Statements of Provable Fact, Not Hyperbole and Insult, Can Be Defamatory 26 To be defamatory a statement “must contain a false statement of fact.” (Gregory v. McDonnell 27 28 21 See footnotes 15-19, supra. 9 DEFENDANT JOHN DOE’S NOTICE OF MOTION AND SPECIAL TO MOTION STRIKE 1329511.1 1 (1976) 17 Cal.3d 596, 600-01.) Only provably false statements of fact can be defamatory; insults, 2 hyperbole, and “loose and figurative expressions of opinion” cannot be. (Paterno v. Superior Court 3 (2008) 163 Cal.App.4th 1342, 1356.) “Rhetorical hyperbole,” “vigorous epithet,” “lusty and 4 imaginative expression of [ ] contempt,” and language used “in a loose, figurative sense” are all 5 protected by the First Amendment. (Greenbelt Pub. Assn. v. Bresler (1970) 398 U.S. 6, 14.) 6 Many courts have applied this rule to rhetorical and insulting accusations of criminal activity or 7 dishonesty. For example, in Rosenauer v. Scherer (2001) 88 Cal.App.4th 260, 280 the court upheld an 8 anti-SLAPP order when the defendant called plaintiff a “thief” and “liar” in “the midst of a heated 9 confrontation over a political issue,” because, as the court explained, the language was “the type of 10 loose, figurative, or hyperbolic language that is constitutionally protected.” Similarly, in Standing 11 Commission on Discipline v. Yagman (9th Cir. 1995) 55 F.3d 1430, 1440, the court found that the term 12 “dishonest” was protected opinion because it was “used to convey the low esteem” in which the 13 defendant lawyer held a judge, not as a literal allegation of dishonesty. (See also Greenbelt Co-op. 14 Pub. Ass'n v. Bresler (1970) 398 U.S. 6, 14 [an article using the term “blackmail” was not defamatory 15 because “even the most careless reader must have perceived that the word was no more than rhetorical 16 hyperbole, a vigorous epithet”]; Troy Group, Inc. v. Tilson (C.D. Cal. 2005) 364 F.Supp.2d 1149, 1159 17 [“crooks” is obvious hyperbole and not a statement of fact]; Morningstar, Inc. v. Superior Court (1994) 18 23 Cal.App.4th 676, 691 [titling article “Lies, Damn Lies, and Fund Advertisements” not actionable as 19 libel because it “cannot reasonably be read to imply a provably false factual assertion”].) 20 Whether a statement is one of fact or one of hyperbole is a question of law for the court. (Seelig 21 v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 809-10.) In making this determination, 22 California courts look at the totality of the circumstances, including both the words used and their 23 context. (Ibid., citing Rudnick v. McMillan (1994) 25 Cal.App.4th 1183, 1191.) In considering the 24 context of a statement, courts examine the “knowledge and understanding of the audience to whom 25 the publication was directed.” (Seelig, supra, 97 Cal.App.4th at 809-810 [emphasis added]; Moyer v. 26 Amador Valley J. Union High School Dist. (1990) 225 Cal.App.3d 722, 724.) A statement made by a 27 publication known for hyperbole and abuse is therefore more likely to be taken as hyperbole and not 28 fact. In Seelig, for instance, the court considered the “irreverence” of a morning ratio program “which 10 DEFENDANT JOHN DOE’S NOTICE OF MOTION AND SPECIAL TO MOTION STRIKE 1329511.1 1 may strike some as humorous and others as gratuitously disparaging” in determining that “no 2 reasonable listener” could take the challenged statements as factual pronouncements. (97 Cal.App.4th 3 at p. 811.) 4 Similarly, statements in an adversarial setting are more likely to be interpreted as hyperbole and 5 not fact. “[W]here potentially defamatory statements are published in a ... setting in which the audience 6 may anticipate efforts by the parties to persuade others to their positions by use of epithets, fiery 7 rhetoric or hyperbole, language which generally might be considered as statements of fact may well 8 assume the character of statements of opinion.” (Gregory v. McDonnell Douglas Corp. (1976) 17 9 Cal.3d 596, 601[statements in a bulletin attacking the motives of union officers in a labor dispute], 10 quoted in Ferlauto v. Hamsher (1999) 74 Cal.App.4th 1394, 1401-02.) 11 In applying this doctrine, California courts have repeatedly recognized that speech on internet 12 forums like Twitter is likely to be viewed by its audience as opinion or hyperbole, not fact. That’s 13 particularly true when the statements are couched in bombastic language:  14 In Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154, the court found that posts on a Yahoo! 15 Finance board that accused the plaintiff of misconduct using terms like “mega scum bag” 16 and “cockroach” were not statements of fact. “A reasonable reader of this diatribe would 17 not comprehend the harsh language and belligerent tone as anything more than an irrational, 18 vituperative expression of contempt for the three officers of SFBC and their supporters.” 19 (159 Cal.App.4th at 1175-76. [noting that debate or criticism often becomes “heated or 20 caustic” on the internet]).  21 In Summit Bank v. Rogers (2012) 206 Cal.App.4th 669, the court reviewed numerous 22 authorities for the proposition that “online blogs and message boards are places where 23 readers expect to see strongly worded opinions rather than objective facts.” (Id. at pp. 696- 24 97.) The court emphasized that in determining whether a statement is taken as fact or 25 bluster, the court must consider how someone familiar with the context would view them: 26 “Rogers’s statements must be viewed from the perspective of the average reader of an 27 Internet site such as Craigslist’s ‘Rants and Raves,’ not the Bank or a banking expert who 28 might view them as conveying some special meaning.” (Ibid.) 11 DEFENDANT JOHN DOE’S NOTICE OF MOTION AND SPECIAL TO MOTION STRIKE 1329511.1  1 In Chaker v. Mateo (2012) 209 Cal.App.4th 1138, the court found that an ex-lover’s rant on 2 a review site called “Ripoff Report” was non-actionable opinion. Because the defendant’s 3 statements were made “on Internet Web sites which plainly invited the sort of exaggerated and insulting criticisms of businesses and individuals which occurred here,” the defendant’s 4 statements that plaintiff “picks up street walkers and homeless drug addicts and is a dead 5 beat dad would be interpreted by the average Internet reader as . . . insulting name calling . . 6 . .” (Id. at p. 1149.) 7 The fact that something is posted on the internet doesn’t automatically make it hyperbole. An 8 internet statement can be treated as one of fact if it is accompanied by indicia of reliability, none of 9 which are present in this case: Internet posts where the “tone and content is serious,” where the poster represents himself as “unbiased” and “having specialized knowledge,” or where the poster claims his posts are “Research Reports” or “bulletins” or “alerts,” may indeed be reasonably perceived as containing actionable assertions of fact. (Overstock.com, supra, 151 Cal.App.4th at pp. 705–706, 61 Cal.Rptr.3d 29.) And while “generalized” comments on the Internet that “lack any specificity as to the time or place of” alleged conduct may be a “further signal to the reader there is no factual basis for the accusations,” specifics, if given, may signal the opposite and render an Internet posting actionable. (Chaker, supra, 209 Cal.App.4th at pp. 1149–1150, 147 Cal.Rptr.3d 496 [making this distinction but finding the comments at issue too generalized to support a defamation claim]; cf. ComputerXpress, Inc. v. Jackson, supra, 93 Cal.App.4th at p. 1013, 113 Cal.Rptr.2d 625 [though generally dismissing Internet postings as nonactionable, suggesting that in a “few instances in which the postings did contain apparent statements of *432 facts— such as the statement that a company owned by the former president had filed for bankruptcy”—they could have been actionable had there been evidence of falsehood].) (Bentley Reserve L.P. v. Papaliolios (2013) 218 Cal.App.4th 418, 433.) 10 11 12 13 14 15 16 17 18 19 20 Application of this law to these facts leads inexorably to one conclusion: Mr. Doe’s insulting tweet was not a statement of provable fact, and can’t be defamatory. 21 2. 22 23 24 In this case, an examination of the context, the understanding of the audience, and the totality of the circumstances shows that every relevant factor points to Mr. Doe’s insulting tweet being figurative and hyperbolic, not a statement of fact: 25 26 27 Mr. Doe’s Tweet Was Hyperbole And Insult, Not A Statement of Provable Fact Twitter is known for hyperbole. Twitter is known for abuse and hyperbole, not for fact. (See Section IIA, supra.) Twitter users will not be inclined to view heated tweets as stating provable facts. (Ferlauto supra,74 Cal.App.4th at pp. 1401-02.) 28 12 DEFENDANT JOHN DOE’S NOTICE OF MOTION AND SPECIAL TO MOTION STRIKE 1329511.1 1 Mr. Doe is known for insult and hyperbole. Mr. Doe’s audience – his followers on Twitter – 2 know that he routinely engages in insult and hyperbole over political figures and pundits. (See Section 3 IIB, supra.) In fact, Mr. Doe’s audience knows that he uses rhetorical accusations of drug or alcohol 4 abuse as a way to express disagreement with political positions. (Exhibits D-4, D-8 to White Decl.) 5 They also know that he reacts with anger to homophobia. (Exhibits D-5, D-9.) The audience won’t 6 expect heated tweets to state provable fact. (Seelig, supra, 97 Cal.App.4th at pp. 809-810.) 7 Mr. Woods is known for insult and hyperbole. Mr. Woods’ followers know that he is routinely 8 at the center of heated political rhetoric. (See Section IIB, supra.) He’s even gone out of his way to 9 emphasize the vivid insults he receives on Twitter. (See footnote 19, supra.) His audience won’t 10 expect heated exchanges with him to contain provable statements of fact. (Seelig, supra, 97 11 Cal.App.4th at pp. 809-810.) 12 Mr. Doe’s tweet came as part of a pattern of insult towards Plaintiff. Plaintiff repeatedly and 13 specifically states that the tweet he sues over was part of a pattern of insult and abuse. He calls the 14 tweet “the culmination of a malicious on-line campaign” of “rantings against Woods” including 15 “childish name calling.” (Complaint at ¶ 1.) He emphasizes that Mr. Doe has called him “prick,” 16 “joke,” “ridiculous,” “scum,” and “clown-boy.” (Id. at ¶ 8; Exh. B to White Decl.) He complains that 17 Mr. Doe seeks to “humiliate others who dare to harbor opinions different from his own.” (Complaint at 18 ¶1.) Mr. Doe’s “cocaine addict” tweet comes in the wake of Mr. Doe’s tweet saying “you are a 19 ridiculous scum clown-boy, James, a joke.” (Exhibit B to White Decl.) Therefore an audience familiar 20 with this interaction would recognize the tweet as just the latest item in a series of insults, not as a fact. 21 (Gregory,supra, 17 Cal.3d at p. 601.) 22 Mr. Doe’s tweet echoed a Twitter in-joke. Twitter users routinely use the “cocaine” insult to 23 respond to Mr. Woods’ political rants. (Exhibits C-1 to C-10 to White Decl.). An audience familiar 24 with Twitter would therefore interpret Mr. Doe’s tweet as an iteration of that joke, not as a provable 25 factual assertion. (Seelig supra, 97 Cal.App.4th at pp. 809-810.) 26 Mr. Doe was responding to a vivid political statement. Mr. Doe’s insult was not offered in the 27 abstract; it came in response to Plaintiff’s vivid statement suggesting that the media should be 28 concerned with abortion and not Caitlyn Jenner’s dress selection. (Exhibit A.) Plaintiff pointedly 13 DEFENDANT JOHN DOE’S NOTICE OF MOTION AND SPECIAL TO MOTION STRIKE 1329511.1 1 referred to Caitlyn Jenner by her former name, Bruce Jenner, making the expression more pungent to a 2 gay rights activist like Mr. Doe. (Id.) Mr. Doe’s tweet was a political response to this political 3 statement. Political rhetoric is much more likely to be taken as hyperbole and not as a statement of 4 literal fact. (Beilenson v. Superior Court, 44 Cal.App.4th 944, 950 (1996) [campaign mailer charging 5 politician with “ripp[ing] off” taxpayers “when taken in context with the other information contained in 6 the mailer [is] rhetorical hyperbole common in political debate” and not defamatory].) 7 Mr. Doe is anonymous. Mr. Doe tweets anonymously under a pseudonym. (Complaint at ¶ 1.) 8 California courts recognize that statements by anonymous internet sources are less likely to be seen as 9 statements of fact. (Krinsky, supra, 59 Cal.App.4th at p. 1162; Summit Bank supra,, 206 Cal.App.4th at 10 p. 697.) 11 Mr. Doe’s tweet was not formal. Mr. Doe’s tweet “cocaine addict James Woods still sniffing 12 and spouting” was a sentence fragment, not a carefully crafted and grammatical statement. California 13 courts recognize that informality doesn’t support viewing a statement as factual. (Summit Bank supra, 14 206 Cal.App.4th at p. 697.) 15 Mr. Doe’s statement was not labeled as fact. Mr. Doe didn’t label his tweet as factual. 16 California courts have recognized that as a factor in determining whether a statement is fact or opinion. 17 (Papaliolios, supra, 218 Cal.App.4th at p. 431.) 18 Mr. Doe’s statement didn’t include any indicia of reliability. Mr. Doe didn’t say why he 19 thought Mr. Woods was a “cocaine addict,” how he would be in a position to know, or what facts or 20 evidence supported the statement. It didn’t include any details. In other words, it didn’t include any of 21 the factors that California courts have identified as suggesting internet bluster can be taken as fact. (See, 22 e.g., Papaliolios, supra, 218 Cal.App.4th at p. 431 [noting detail and claims of personal knowledge as 23 indicia of statements of fact].) 24 In short, all of the facts show that Mr. Doe’s audience would not have interpreted his tweet 25 as a statement of fact. (Seelig, supra, 97 Cal.App.4th at pp.809-810). The totality of the 26 circumstances overwhelmingly shows it was not a statement of fact. (Ibid.) The tweet is classic 27 “rhetorical hyperbole,” “vigorous epithet,” “lusty and imaginative expression of [ ] contempt,” and 28 14 DEFENDANT JOHN DOE’S NOTICE OF MOTION AND SPECIAL TO MOTION STRIKE 1329511.1 1 language used “in a loose, figurative sense,” and therefore non-defamatory and absolutely protected by 2 the First Amendment. (Greenbelt supra, 398 U.S. at p. 14.) 3 Because Plaintiff can’t show a false statement of provable fact, he can’t make a prima facie case 4 of defamation. Nor can he make a prima facie case for his second cause of action of False Light 5 Invasion of Privacy. First, that claim is defective when combined with a defamation claim based on the 6 same facts. “When an action for libel is alleged, a false-light claim based on the same facts (as in this 7 case) is superfluous and should be dismissed.” (McClatchy Newspapers, Inc. v. Superior Court (1987) 8 189 Cal.App.3d 961, 965.) Moreover, if a defamation claim cannot succeed, nor can a false light claim 9 on the same facts. (Tamkin v. CBS Broadcasting (2011) 193 Cal.App.4th 133, 148.) 10 California courts have recognized that online anonymity allows the weak to criticize the strong: 11 “The use of a pseudonymous screen name offers a safe outlet for the user to experiment with novel ideas, express unorthodox political views, or criticize corporate or individual behavior without fear of intimidation or reprisal. In addition, by concealing speakers’ identities, the online forum allows individuals of any economic, political, or social status to be heard without suppression or other intervention by the media or more powerful figures in the field.” (Krinsky v. Doe 6, supra, 159 Cal.App.4th at p. 1162, 72 Cal.Rptr.3d 231.) “The ‘ability to speak one’s mind’ on the Internet ‘without the burden of the other party knowing all the facts about one’s identity can foster open communication and robust debate.’ ” (Doe v. 2TheMart.com Inc. (2001) 140 F.Supp.2d 1088, 1092.) (Digital Music News LLC, 226 Cal.App.4th at 228-29.) 12 13 14 15 16 17 This case shows exactly why anonymity is valuable and necessary: a rich and famous person, 18 furious that some presumptuous gay activist dares to use the same language he uses all the time, has 19 lashed out with a vexatious lawsuit to silence and abuse his critic. The Court should not permit it. The 20 Court should grant the motion and strike Plaintiff’s vexatious and censorious lawsuit. 21 D. 22 Mr. Doe is Entitled To His Attorney Fees A “prevailing defendant” on a motion to strike “shall be entitled” to recover attorney fees and 23 costs. (Code Civ. Proc. § 425.16, subd. (c) [emphasis added].) The fee award is mandatory, and may be 24 sought in three ways: (1) the party may request fees in the motion; (2) the party may make a noticed 25 motion for fees after the ruling on the anti-SLAPP motion; or (3) the party may include the fee request 26 in the cost bill after entry of judgment. (American Humane Ass'n v. Los Angeles Times 27 Communications, (2001) 92 Cal.App.4th 1095, 1103.) 28 Here, Mr. Doe will submit a motion for fees after the hearing on this motion. 15 DEFENDANT JOHN DOE’S NOTICE OF MOTION AND SPECIAL TO MOTION STRIKE 1329511.1 A {3 R. 5 IV. CONCLUSION For the foregoing reasons, Defendant John Doe respectfully requests that the Court strike this vexatious Complaint and award his attorney fees, for which he will move separately. Dated: September 1, 2015 1 1 Respectfully submitted, BROWN WHITE OS By P. WHITE Attorneys for Defendant JOHN DOB 16 DEFENDANT JOHN NOTICE OF MOTION AND SPECIAL TO MOTION STRIKE 1 DECLARATION OF KENNETH P. WHITE 2 I, Kenneth P. White, declare as follows: 3 1. I am an attorney licensed to practice law in California and am a Partner at Brown White 4 & Osborn LLP, attorneys for Defendant John Doe (“Defendant”). I make this Declaration in support 5 of Defendant’s Special Motion to Strike. I know the matters in this declaration based on my own 6 knowledge and could testify to them if called as a witness. However, because this declaration is 7 submitted for a limited purpose, it does include all fact I know about the matter. 8 EXHIBITS 9 2. Attached as Exhibit A is a true and correct copy of a screenshot of the July 15, 2015 10 Twitter exchange that is the subject of this lawsuit. I obtained it from Exhibit A to Plaintiff’s ex parte 11 application for early discovery, referred to in paragraph 3 of Mr. Woods’ August 27, 2015 declaration 12 in support of that ex parte application. 13 3. Attached as Exhibit B is a true and correct copy of a screenshot of the December 25, 14 2015 Twitter exchange referred to in Plaintiff’s complaint. I obtained it from Exhibit B to Plaintiff’s 15 ex parte application for early discovery, referred to in paragraph 6 of Mr. Woods’ August 27, 2015 16 declaration in support of that ex parte application. 17 4. Attached as Exhibit C are 10 true and correct copies of screenshots of Twitter 18 exchanges in which Twitter users make reference to cocaine use by Plaintiff. They were found at the 19 following locations: 20 a. C-1: https://twitter.com/AnnLynch3/status/563114160071122945 21 b. C-2: https://twitter.com/BexaRaven/status/563710275816157184 22 c. C-3: https://twitter.com/Jaccuse1/status/562483964078592000 23 d. C-4: https://twitter.com/HaneyClay/status/557986986301325312 24 e. C-5: https://twitter.com/Rinkguy/status/555336155877900288 25 f. C-6: https://twitter.com/sunny37130/status/547209909809332226 26 g. C-7: https://twitter.com/BaronMatrix/status/388403286132281344 27 h. C-8: https://twitter.com/realmrmom/status/551072794851565569 28 i. C-9: https://twitter.com/Cjenkinshammond/status/547554606801104896 17 DECLARATION OF KENNETH P. WHITE IN SUPPORT OF DEFENDANT JOHN DOE’S NOTICE OF MOTION AND SPECIAL TO MOTION STRIKE 1329511.1 1 j. C-10: https://twitter.com/fukyu70/status/549348416078487552 2 5. Attached as Exhibit D are true and correct copies of screenshots of tweets posted by Mr. 3 Doe on his @AbeListed Twitter account. They were found at the following locations: 4 a. D-1: https://twitter.com/abelisted/status/411371374389624832 5 b. D-2: https://twitter.com/abelisted/status/616436842095751169 6 c. D-3: https://twitter.com/abelisted/status/407180532699512832 7 d. D-4: https://twitter.com/abelisted/status/472185624565280768 8 e. D-5: https://twitter.com/abelisted/status/608013379999899648 9 f. D-6: https://twitter.com/abelisted/status/464774085281460225 10 g. D-7: https://twitter.com/abelisted/status/326935265065185280 11 h. D-8: https://twitter.com/abelisted/status/357259754847993858 12 i. D-9: https://twitter.com/abelisted/status/448733069332054016 13 6. Attached as Exhibit E are true and correct copies of screenshots of tweets posted by 14 Plaintiff on his @RealJamesWoods account. They were found at the following locations: 15 a. E-1: https://twitter.com/RealJamesWoods/status/388773780417302528 16 b. E-2: https://twitter.com/RealJamesWoods/status/546782498525839360 17 c. E-3: https://twitter.com/RealJamesWoods/status/491672808012144640 18 d. E-4: https://twitter.com/RealJamesWoods/status/357750439518797824 19 e. E-5: https://twitter.com/RealJamesWoods/status/381629222823161856 20 f. E-6: https://twitter.com/RealJamesWoods/statuses/614751096255283200 21 g. E-7: https://twitter.com/RealJamesWoods/status/549327893567115267 22 h. E-8: https://twitter.com/EmptyChair2012/status/495427243716644866 23 i. E-9: https://twitter.com/RealJamesWoods/status/488953744730914817 24 j. E-10: https://twitter.com/RealJamesWoods/status/390674524523352064 25 k. E-11: https://twitter.com/RealJamesWoods/status/357747578009432064 26 l. E-12: https://twitter.com/RealJamesWoods/status/546618313884045312 27 m. E-13: https://twitter.com/RealJamesWoods/statuses/357748304416735232 28 n. E-14: https://twitter.com/RealJamesWoods/statuses/357739270162751488 18 DECLARATION OF KENNETH P. WHITE IN SUPPORT OF DEFENDANT JOHN DOE’S NOTICE OF MOTION AND SPECIAL TO MOTION STRIKE 1329511.1 1 TWITTER 2 7. I have used the social media platform Twitter for more than five years and am very 3 familiar with how it works. I co-run a Twitter account that has posted almost 75,000 “tweets” over 4 that time and has more than 43,000 followers. In addition, I have researched and written several times 5 about the implications of defamation and true threat law as applied to communications on Twitter, and 6 have been interviewed on that subject by various media outlets. 7 8. Twitter users create an account with a username. The account name is preceded with 8 an “at sign,” @. Thus Mr. Woods’ Twitter account is @RealJamesWoods, and Mr. Doe’s is 9 @AbeListed. Anyone with an email address can sign up, make statements, and read other people’s 10 statements. 11 9. Twitter users can post messages of up to 140 characters from their account in a single 12 message, and can post pictures, video, and links to other web sites as part of those messages. Each 13 message is called a “tweet.” 14 10. Once a Twitter user has an account, they can follow other accounts with a push of a 15 button. “Following” another account means that the user sees the tweets that the account-user posts on 16 Twitter – in effect, the follower is a subscriber to the followed account. The aggregate of all the 17 Twitter accounts a user follows is sometimes called the user’s “Twitter feed.” Depending on how 18 many accounts the user follows, the feed may generate “tweets” to read slowly or very swiftly. 19 11. A Twitter user can also “retweet” or “RT” someone else’s “tweet.” By clicking on a 20 symbol under another user’s tweet, a user can cause that tweet to repeat in his or her own timeline, so 21 his or her own followers see that other user’s tweet. Tweets by celebrities and other famous people are 22 commonly retweeted hundreds or thousands of times. 23 12. A Twitter user can “favorite” a tweet by clicking a star symbol under the tweet. This 24 puts the tweet in the user’s “favorites” list, which other users can see if they click on that user’s 25 “favorites” column. 26 13. Twitter displays how many times a tweet has been “retweeted” or “favorited.” For 27 instance, Exhibit E-1 shows that at the time that particular screenshot was taken, Mr. Woods’ tweet 28 had been retweeted by 8 Twitter users and favorited by 14 Twitter users. 19 DECLARATION OF KENNETH P. WHITE IN SUPPORT OF DEFENDANT JOHN DOE’S NOTICE OF MOTION AND SPECIAL TO MOTION STRIKE 1329511.1 1 14. A Twitter user can also click a ?Noti?cations? link to see the following: 2 a. All the times their tweets have been retweeted or favorite by others; and 3 b. All the times someone has addressed them by using like username like 4 @AbeListed in a tweet. 5 15. Twitter has a search function on its main screen. A user can search for a word, or a 6 username, andTwitter will display recent tweets re?ecting that word or username. 7 16. A user will only see someone else?s tweet under ?ve circumstances: 8 a. When the user follows the person who tweeted; 9 b. When the user follows someone who retweeted the tweet in question; 10 When someone ?favorites? the tweet, and the user clicks on that person?s 11 ?favorites? column; 9.. When the user searches for a word or username that is in the tweet, and sees it in U.) search results; or l?n e. When the tweet is promoted through Twitter?s advertising mechanism. 17. Therefore, when someone like @Abelisted tweets something like Exhibit A to someone like @RealJamesWoods, @Abelisted?s followers will see it, but @RealJamesWoods? followers will J?l NJ not automatically see it. 312mm aesaom declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. KC Ix.) CD Executed on September 1, 2015 in Los Angeles, California. a?enneth P. White 20 DECLARATION OF KENNETH P. WHITE IN SUPPORT OF DEFENDANT JOHN NOTICE OF MOTION AND SPECIAL TO MOTION STRIKE EXHIBIT A . I }i File Edit View Favorites Tools Heip Pagev 125%"! ?23 Safetyv Toolsv 0 Home Noti?cations Messages Search Twiiter James Woods @ReaidamesWoods Jul 15 USATODAY app feamres Bruce Jenner's latest dress selection, but makes zero mention of Planned Parenthood baby parts market '1 -3K 949 3" if": Abe List @abelisted 1C3 Follow @RealJamesWoods @benshapiro cocaine addict James Woods still snif?ng and spou?ng. ii? I 7:40 AM -15 Jul 2015 5 I Repiy to @abelisted @RealdamesWoods EXHIBIT 3- WU r5 (- [i File Edit View mode: tool; Help . ,1 Us. .. xii-1'. Abe List on .'0llolU- 9 Home 4 Notifications Messages Sol-mm r-Mllei James Woods @RealJamesWoods Dec 25 was so moved by Obama's Christmas message today from the steps of his church. He ?nally put all those nasty Muslim rumors to rest. 651 ?f 903 Abe List a: Follow {fi?abelisled @RealJamesWoods you are a ridiculous scum clown-boy James, a joke. Hi: he); I 4 Olin 9 6254 mil - 25 Dec 201:1 I Reply to @abelislad @RealJamesWoods ., A Mp anc 'Aon nun CelmO?wIWisdom Dec 23 I?u? J: Big Sexyde Lund - TMebule -Jun 23 Woods has been in diameter as a dumb Bh?l?l??d f?f BO long that the Q?D?l?l? DB the prep. a James Woods @FtealJamesweods - up .- ?FleaLlamasWuuds Justine An?wny Kennedy: 'Gays ask for equal dignity in me ayes of the law] #LiueandLetLhre 11 ?a ls_lt_Dctaber_?fet at}: +1 Follow .-.- ifstenefan @Mebute @Realdamesdeds - used to think he was great in The Beast, "playing" a coke addicted asshole. Then I realized he wasn't playingJun 2015 C1 1329226.1 Jame-3 Woods ReaiJemcs'v'u'e-nde - Feb Goneenmtiem is sabotaged by coward tn liberals who strive to ?l 1 Sum-?art it. Reagan's greatest strength was his unabashed pride seuthcr?nlger - Fan 6 OH Reagan a pride you say dc:- ecme research B4 you make a fool ef yours-EH. HE tanked economy 5 oh. Iram'?ontre 1 A Mrejlaven a Follow Bexa?auen @eeutherntalker theught Weeds Spent the 803 snorting coke and beating women? @FtealdameeWeeds FINE-FIFE a 1 EELS AM Fol: 2C15 C2 1329226.1 Jemee Weede HealJemesWeeds - Feb 2 The Libe switched from 'glehel wen-ning' te 'elirnete ehenge' just in time. These record cold winters would have been a tad 1K. 913 Brett: ?r Fellow Jsseusel isiRealJamesWeeds 214715;:Callist01 947 woods has whiffed to much coke to be taken seriously, his little brain is in powder form new Zr" Feb PC1153: C3 1329226.1 Jam Wanda @RaalJamesWn-nds - Jan 21 Frames: TOT ?ghting tenor End agaln mad for better annB in today's warld is realm-d too late 354 316 Mummy Clay Harlemr ?3 FM - ,i?f @Haney?lay @RealdamesWoods You need to quit smoking Crack! 1:43 PM 21 Jan 2015 C4 1329226.1 Imagine if this kind at mrege and dignity were in the White Jim MeMerrew Fulinw - -. @RealdameSWoods @jstiness is j.w. smoking crack? 14 Jan 2015 C5 1329226.1 0 Joyce Meredith Follow irisunnya? @RealJamesWoode Mr. used to think you were a great actor and now see that you still are. Acting like you've been smoking crack. ESE PM - 22 Dee 2014 C6 1329226.1 .l i 1329226.1 James Woods .. Sixteen tears of machine Democrats shredding the fabric of this Republic will toss the greatest democracy on the trash hear:l of 1aorta historyr a christian M. Howell a: RealJamesWoode STEP AWAY FROM THE CRACK FDIIDW Reagan began our debt. GWB and his dad blew it up to ridiculous Redheaded ElizabethNelsUn - Jan 2 ?FiealJ am and to think, yeu earned everyr one of us, unlike Dbarna'$ fellewer$, 1with yeur insightful tweets; we levee you. 4 MrMem reelmrmer?n @EIizabethNelsUn @RealdamesWoods You admire a Cocaine addled old actor who is dating a 18yr old with a criminal record?! 1 11:49 PM - 2 Jan 2015 Follow a) Beach. CA 1329226.1 C8 1329226.1 7' ABFoundetion ABFaleobaldwin - Use 21 . I am shocked to see some of the otherwise informed people who would politicize the deaths of police officers. HeeldemesWoods 21. Followr - CJ .- Cjenliinshemmohd . ABFsleraldwin RealJamesWoode AB MUST be referring to that coke head pimp 6:49 PM - 23 Dec 2014 C9 James Woods RealJamesWeods - Dec 28 Is ?ying on the plane lreryr dangerous dun?ng a hundersterrn? Yahoo Answers This mayr explain the Aersia tragedy. answers.yahoeeoquuestian?ndex. .. 62 T2 Fulluw Charles Davis . - rurcyum @RealJamesWoods say niggal You still on cocaine? 1 5:3? PM 25 Dee BUM C10 1329226.1 Dondd .1. Tampa moamonoloTrump - 12 Doc 2013 . How amazing. tho State Hoor?'l Dirootor who vori?od oopioo of Clo-arm's ?birlh oartl?oato" died in piano clam today. All others Ilvod 1.5% THE Abe List Follomng Habelisted? @realDonaldTrump the new Klan will have orange hair. 11:45 PM - 1206132013 D1 1329237.1 4'54 Abe List #3 i Donald Trump and @RichLowry the United Racists of America, are actually Democrat agents working to alienate el veto latino from GOP forevah FAVORITES 5 i - I a 9:42 PM ?1 Jul 2015 1329237.1 D2 ?Fm Kdavidfrum - 1 Dec2?13 mum mabelisled @davidfrum Or move back to Canada and quit whining. You've already damaged this country enough, eh? -1Dec 2913 D3 1329237.1 1329237.1 33!. WHnum?Gm ?='whpresscorps - 29 May 2014 HT Peggyneunan nye: Dbama's inattentiun te governing my kill the progressive project. un.wsj.carm?1ppu1 r1 3 2 Wew summary Aha List a: ziabelistedi Following @whpreescerps @Peggynoonannyc Iol. hitting the gin again Peggy? read any Pew polls between cocktails. Peggy? 3:20 PM 29 May 9014 D4 Abe List at): Fallowan arszzabeiisteda hahaha 2-penny huekster @Franklin_Graham sets himself up for another failure. bring it, my bitch. GEE Lu: Anglia: Evangelist Franklin Graham calla for boycott of Walla other fl'iE?dly companies chalecam FAVURITE . 1 3:51 PM - 3 Jun 2015 D5 1329237.1 1329237.1 Kurt Schlinhtar r: Ku hlic hter - 9 May 2014 . it's cute haw same stupid paupla imagine that this}:r are my peers. #caring 2 4 Vegas Allende B1 uggler - 9 May 201 it lick my bouts. Kurt 2 Abe List t3: Fullawll'ig :?.atzelisted Ambulance chaser "lemon lawyer" 3rd rate law school eyeballs in debt. Yet still superior to me. Sadz. FAVORITES a 2 I. rl.-nn All D6 SHE FACT CINE How the hammer drops in Glenn Beck "glennbecl-q - 23 Apr 24313 Janet DHS admitted under oath today they DID 'event" Saudi?? AM. EH SE- a - abelisteo i @glennbeck Glenn you should be prescribed some atypical meds to help relieve your paranoia. 12:46 AM - 24 Apr 211113 1329237.1 D7 Li: If: - 2'9 Jul 2012 - 1K 111} AbaLlst 3:3 ?abalistedi @Liz_Cheney @BuzzFeedAndrew @SarahPalinUSA 0mg what drugs is Liz Cheney on? 5:05 PM - 1E: Jul 2013 1329237.1 D8 Salty Jab! Lund ""Mobute - 25 Mar 2014 Why can't I legally.f bludgeon Antonin Scalia in the dick with mouthing like Matt Drudge's skull? 1 19 Abe List Fallowlnu @Mobute why can't i inject Scalia with an admixture of Breitbart'e recycled cholesterol and Ben Shapiro's colorless piss? Why?! 3:0? AM - 25 Mar 2014 1329237.1 D9 1329245.1 Stephen ?arramune Sic-mg - 11 Oct L?Ulu fi-FtealJameszds Hawa- navar heard Inglcal argument agalnst Dbama Ju 5t slogans and labels. you, Jan Height, Giuliani, all HW shit-heads James Wands Q: Follnw Ileald arres'u'v'p ads @3818va Well. put your crack pipe, and retread my timelines. You'll find plenty there. ?H'r'i'li: 3 ?l4 PM - 11 Gun?. H113 E1 El banghazl rah-reared Wand: Hm - Dec 21 mJGSamn Thank God. I mulch-rt want you to spat-Id mt gracious crack alluwm being mighimad. - 21GB: 2314 - D?1ai 5 Hide-Mm Hepry ta ?HaaLInranm-ds 13292451 E2 - James Wandsa 11: Fallow This clown's opinion of our National Guard. ?ii?lk?n 2:55 PM - ?22 .Jul 2014 E3 13292451 1329245.1 James Wood: These mane}! hungry scum will even cash in en like the Basten atrocity for their thirtyr pieces ef eihrer. Buggies the T5 39 E4 1329245.1 Hadleyr Balku - 21 Sep 2013 James Woods: Kind sf .3 disk. This Tweet is unavailable. 21 11 James Woods FissiJ amesWsods Follow a: @radleybalko @GrazianoPerrell Of course I'm not sure, coming from him, if "dick," is an insult or a menu choice! Lol. seerErs . 11331 PM - 2139p 2013 E5 James Woods (3 Follow RealJamesWoods @RealJamesWoods Justice Anthony Kennedy: "Gays ask for equal dignity in the eyes of the law." #LiveandLetLive 1329245.1 E6 James Woods Fullnw I could shoot this guy in the head and sleep like a baby. All? 2'15 PM - 23 EE'li E7 1329245.1 13292451 James Woods - Undocumented Democrats on their way to America's 'u'?tii'ig 1.3K I. Foiluw Leafs 3r Fishes 2.3' When did turn into such a bigoted prick? I'll have to renew my Variety subscription. immigration twitter.comXRealJamesWoods. .. - . E8 James Woods Fultnw In?. i IA. .L II-nm. Hal-26MWhatthe left wants What?s coming across you to thinlt is with them I: Inert-?r: eaciqua rte-r5 2,555 .- ..-, .. E9 13292451 James Weeds - 1E 2013 Eiaracl-t Dhama has achieved his dream. America, as we dnce Knew her, is circling the drain- We are new the Natidn dfthe Dutstretched Palm- 2.3K 1.1K Kristen Bartlett Hristencheeks - 1I3 i?ici 2013 a IHHEW was a dick. when he wduldn'ttal-te a with me at the dealc; athen again when he appeared pn Entdurage as himself. 11 32 James Woods Fellow RealJamest-?a-?oods @kristencheeks You are damned liar. have never refused a picture with anyone in my life. You are a disgusting, reprehensible liar. II I'll I L?l??i?il? 11.03 Pr'v1-11313Ct2'113 E10 1329245.1 James Woods - 18 Jul First Amendment oroteots Rolling Stone, out had to that shit rag- Eloyoott Rolling Stone- Put it out of business-- 245 95 James Woods - 13 Jul 2013 First Amendment oroteots Rolling Stone, oot hasto that shit rag. Eloyoott Rolling Stone- Put it out of oosiness-SHAME 2'5 34 Brooklyn MoMaster Brookej??of'?aster - 18 Jul 2012:- eQReal-lamesWoods It's a long departure from the days of Hunter S, Thompson and Lester Elangs. Just a heap of shit- 5 4 James Woods Follow RealJamest-?Joods @Brooke_McMaster Jann Wenner whacking off to this puke terrorist is like Gore Vidal drooling over McVeigh. Fix 23 2' - 13 Jul 2013 E11 1329245.1 I James Woods :Cr Follow RealJamesWoods This disgusting pig is DIRECTLY responsible for the murder of two good policemen. No discussionfimauNs THE LEADS PRGTESTS AGAINST poucs frien 25,15,233: 3.23;: E12 13292451 James Woods i Could that disgusting piece of shit Wenner have picked a prettier cover shot of his dreamboat homoerotic fantasy? What an as" Li?" 2 26-13 2013 E13 1329245.1 1329245.1 James Woods :Follow Does that puke Jann Wenner harbor erotic fantasies for that other puke, the Boston Bomber? Fuck them a? 53 115 1 51-18 uL 2 113 E14 I?n PROOF OF SERVICE STATE OF CALIFORNIA. COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of ei hteen years and not a party to the within action. My business address is 333 South Hope Street, 40 Floor, Los Angeles, California 90071. On September 1, 2015, I served the following document(s) described as: DEFENDANT JOHN NOTICE OF MOTION AND SPECIAL TO MOTION DECLARATION OF KENNETH P. EXHIBITS in this action by placing true copies thereof enclosed in sealed envelopes and/or packages addressed as follows: Evan N. Spiegel, Esq. Laver Singer, PC. 2049 Century Park East, Ste. 2400 Los Angeles, CA 90067 IE BY MAIL: I deposited such envelope in the mail at 333 South Hope Street, 40th Floor, Los Angeles, California 90071. The envelope was mailed with postage thereon fully prepaid. I am ?readily familiar? with the firm?s practice Of collection and processing correspondence for mailing. It is deposited with the U.S. Postal Service on that same day in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one (1) day after date of deposit for mailing in af?davit. pomp??0 El BY FACSIMILE: I served said document(s) to be transmitted by facsimile pursuant to Rule 2008 of the California Rules of Court. The telephone number of the sending facsimile machine was 213/613-0550. The name(s) and facsimile machine telephone number(s) of the person(s) served are set forth in the service list. 8? BY OVERNIGHT DELIVERY: I served such Sized by the overnight service carrier to receive documents, in an envelope or package designated by the overnight service carrier. p?l inseam A 0 1? a El BY HAND DELIVERY: I caused such envelope(s) to be delivered by hand to the above k' 18 addressee(s). ".41 19 El BY ELECTRONIC MAIL: On the above?mentioned date, from Los Angeles, California, I caused each such document to be transmitted electronically to the party(ies) at the e-mail 20 address(es) indicated below. To the best Of my knowledge, the transmission was reported as complete, and no error was reported that the electronic transmission was not completed. 21 I21 STATE: I declare under penalty of perjury under the laws of the State Of California that the foregoing is true and correct. 23 Executed on September 1, 2015, at Los Angeles, California 24 25 Le Perez 26 27 28 21 . PROOF OF SERVICE RE DEFENDANT JOHN {v NOTICE OF MOTION AND SPECIAL TO MOTION STRIKE