Superior Court of California
County of Los Angeles

Case No: BCS 89746

JAMES WOODS,
DEPARTMENT 45

Plaintiff,

vs. ORDER
JOHN DOE, ET AL,

Defendants. Complaint Filed: 7/ 29/ 15

Trial Date: None set

 

 

Hearing date: February 6, 2016
Moving Party: Defendant John Doe aka ?Abe List?
Responding Party: Plaintiff James Woods

Special Motion to Strike (Civ. Proc. 425.16)

The Court considered the moving papers, Opposition, and reply.

The motion is GRANTED.

Defendant John Doe aka ?Abe List? requests that the court strike the complaint on the
grounds that it constitutes a strategic lawsuit against public participation within CCP
section 425.16. Defendant contends that his speech is protected by the statute and plaintiff
cannot show a probability of prevailing on the merits.

Plaintiff ?led a complaint against John Doe aka ?Abe List? and Does 2 through 10 for (1)
defamation and (2) invasion of privacy by false light. Plaintiff alleges that his claims arise out of
and are for damages with respect to a false and defamatory statement which was initially
published on or about 7/15/15 by an unidenti?ed anonymous person who created and who

operates a Twitter account under the name ?Abe List.? [Twitter is a social media

platform on which users send ?tweets??statements of up to 140 characters?visible to other
users who ?follow? them] The owner of this Twitter account has thousands of followers and,
since at least December 2014, has undertaken to engage his followers with a campaign of
childish name-calling targeted against Woods. In the past, AL has referred to Woods with such
derogatory terms as ?prick,? ?joke,??ridiculous,??scum? and ?clown?boy.? Complaint, 8. On
7/15/15, and for the sole and intentional purpose of harming Woods, AL concocted and posted
on his Twitter account the outrageous, baseless, false and defamatory statement ?cocaine addict
James Woods still snif?ng and spouting.? In doing so, AL intended to, and did, convey to
thousands of followers and others with access to the internet the false claim that Woods is
addicted to cocaine, a controlled substance. Id., 9.

Plaintiff further alleges that an unidenti?ed person operates and utilizes the AL Twitter
Account which is displayed at or with the uniform resource locator 
and which is continually maintained and is included
in and appears prominently in current Googlecom and other search engine results. Indeed, a
search on Google.com for ?Abe List James Woods? yields the outrageous statements from the
AL Twitter Account as the top two results, including one that calls Woods ?a ridiculous scum
clown-boy.? Id., 10. AL published, and/or caused to be published or authorized to be published,
the false statement on the AL Twitter Account and in current (as of the date of this Complaint)
Googlecom search engine results, causing the false statement to be viewed thousands of times
and possibly even hundreds of thousands of times. AL posted the false statement in response to
a Twitter post by Woods. Thus, the false statement has been seen not only by defendants?
thousands of followers, but possibly by Woods? 238,512 followers on his Twitter account. Id.,
11.

To rule on a section 425.16 motion to strike, the court employs a ?two-step process:

First, the court decides whether the defendant has made a threshold showing that the challenged

cause of action is one arising from protected activity.? Vargas v. City of Salinas (2009) 46 Cal.
4th 1, 16; Taus v. Loftus (2007) 40 Cal. 4th 683, 703; Rusheen v. Cohen (2006) 37 Cal. 4th
1048, 1056; Equilon Enterprises v. Consumer Cause. Inc. (2002) 29 Cal. 4th 53, 67. ?If the court
?nds such a showing has been made, it then determines whether the plaintiff has demonstrated a
probability of prevailing on the claim.? Egg, 46 Cal. 4th at 16; I_au_s, 40 Cal. 4th at 703;
wheel}, 37 Cal. 4th at 1056; mm, 29 Cal. 4th at 67. The plaintiff demonstrates a
probability of prevailing by showing that the complaint is both legally suf?cient and supported
by a suf?cient prima facie showing of facts to sustain a favorable judgment if the evidence
submitted by the plaintiff is credited. Hutton v. Hafif (2007) 150 Cal. App. 4th 527, 537; 
v. Wal-Mart Real Estate Business Trust (2007) 153 Cal. App. 4th 790, 799; Roberts v. Los
Angeles County Bar Ass?n (2003) 105 Cal. App. 4th 604, 613; Chavez v. Mendoza (2001) 94
Cal. App. 4th 1083, 1087. ?The defendant has the burden on the ?rst issue; the plaintiff has the
burden on the second.? Gallimore v. State Farm Fire Casualty Ins. Co. (2002) 102 Cal. App.
4th1388, 1396.
Step One: Defendant?s Moving Burden
In order to invoke Section 425.16, a defendant need only demonstrate that a suit ?arises
from? the defendant's exercise of free speech or petition rights. See CCP section 
City of Cotati v. Cashman (2002) 29 Cal. 4th 69, 78. This is determined by the ?gravamen or
principal thrust? of the action. Episcopal Church Cases (2009) 45 Cal. 4th 467, 477. See also
Martinez v. Metabolife International, Inc. (2003) 113 Cal. App. 4th 181, 188 (the gravamen of
the plaintiffs cause of action determines whether Section 425.16 applies). In making this
determination, the court analyzes ?Whether the defendant's act underlying the plaintiffs cause of
action itself was an act in furtherance of the right of petition or free speech. Accordingly, we
focus on the speci?c nature of the challenged protected conduct, rather than generalities that

might be abstracted from it.? Dyer v. Childress (2007) 147 Cal. App. 4th 1273, 1279. ?In

making its determination, the court shall consider the pleadings, and supporting and opposing
af?davits stating the facts upon which the liability or defense is based.? Code Civ. Proc.


The preamble to section 425.16 states its provisions are to be construed broadly to
safeguard the constitutional right of free speech. ?425 Broad construction must therefore
be given to the phrase ?an issue of public interest.? Tamkin v. CBS Broadcasting, Inc. (2011)
193 Cal. App. 4th 133, 143.

On 7/15/15, plaintiff tweeted from his Twitter account @RealJamesWoods,
app features Bruce Jenner?s latest dress selection, but makes zero mention of
Planned Parenthood baby parts market.? In response, Abe List tweeted, ?cocaine addict James
Woods still snif?ng and spouting.?

Defendant?s 7/15/15 tweet falls under CCP section ?any written or oral
statement made in a place open to the public or a public forum in connection with an issue of
public interest? and 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.?

Twitter is a public forum. The tweets were made in connection with issues of public
interest.

Defendant has met his burden.

Step Two: Plaintiff?s Resnonding Burden

?We decide this step of the analysis on consideration of the pleadings and supporting and
opposing af?davits stating the facts upon which the liability or defense is based. 
Looking at those af?davits, do not weigh credibility, nor do we evaluate the weight of the
evidence. Instead, we accept as true all evidence favorable to the plaintiff and assess the

defendant?s evidence only to determine if it defeats the plaintiff? submission as a matter of law.?

(Grewal v. ammu (2011) 191 Cal. App. 4th 977, 989.) This is because the statute
does not require the plaintiff ?to prove the speci?ed claim to the trial court?; rather, so as to not
deprive the plaintiff of a jury trial, the appropriate inquiry is whether the plaintiff has stated and
substantiated a legally suf?cient claim. (Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.
App. 4th 90, 105.) ?Put another way, the plaintiff ?must demonstrate that the complaint is both
legally suf?cient and supported by a suf?cient prima facie showing of facts to sustain a
favorable judgment if the evidence submitted by the plaintiff is credited.?? (Oasis West Realty,
LLC v. Goldman (2011) 51 Cal. 4th 811, 820.) If the plaintiff can a probability of
prevailing on any part of [his or her] claim, the cause of action is not meritless and will not be
stricken; once a plaintiff shows a probability of prevailing on any part of [his or her] claim, the
plaintiff has established that [his or her] cause of action has some merit and the entire cause of
action stands. (Qasis, supra, 51 Cal. 4th at 820, quoting supra, 120 Cal. App. 4th at 106).?
Burrill v. Nair (2013) 217 Cal. App. 4th 357, 378-79 (citations omitted). Plaintiff must present
admissible evidence to make this showing, however, and cannot rely solely on the allegations of
the complaint. Roberts v. Los Angeles County Bar Association (2003) 105 Cal. App. 4th 604,
613-14; see Evans v. Unkow (1995) 33 Cal. App. 4th 1490, 1497-98 (proof cannot be made by
declaration based on information and belief).

The tort of defamation involves a publication that is false, defamatory, and 
unprivileged, and that has a natural tendency to injure or that causes special damage.? ms
v. Loftus (2007) 40 Cal. 4th 683, 720. ?If the person defamed is a public figure, he cannot
recover unless he proves, by clear and convincing evidence, that the libelous statement was made
with "?actual malice? that is, with knowledge that it was false or with reckless disregard of
whether it was false or not.? Reader?s Digest Assn. v. Superior Court (1984) 37 Cal.3d 244.
?Libel is de?ned by Civil Code section 45 as 'a false and unprivileged publication by writing, . . .

which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be

shunned or avoided, or which has a tendency to injure him in his occupation.? . . . In determining
whether a statement is libelous we look to what is explicitly stated as well as what insinuation

and implication can be reasonably drawn from the communication.? Forsher v. Bugliosi (1980)

 

26 Ca1.3d 792, 802803.
?Whether published material is reasonably susceptible of an interpretation which implies
a provably false assertion of factm?the dispositive question in a defamation action?His a question

oflaw for the court.? Couch v. San Juan Uni?ed School Dist. (1995) 33 Cal. App. 4th 1491,

 

1500. The question is to be resolved by determining how the ?'average' reader? would interpret
the material. Li; San Francisco Bav Guardian. Inc. v. Superior Court (1993) 17 Cal. App. 4th
655, 658-59 and by considering the ?totality of the circumstances.? Seelig v. In?nity
Broadcasting. Corp. (2002) 97 Cal. App. 4th 798, 809; Sanders v. Walsh (2013) 219 Cal. App. 4th
855, 862. ?Statements do not imply a provably false factual assertion and thus cannot form the
basis of a defamation action if they cannot ?reasonably [be] interpreted as stating actual facts?
about an individual. Thus, ?rhetorical hyperbole,? ?vigorous ?lusty and imaginative
expression[s] of . . . contempt,? and language used ?in a loose, ?gurative sense? have all been
accorded constitutional protection.? Ferlauto v. Hamsher (1999) 74 Cal. App. 4th 1394, 1401;
Se_elig, supra; Greenbelt Pub. Assn. v. Bresler (1970) 398 US. 6, 14.

In considering the context of a statement, courts examine the ?knowledge and
understanding of the audience to whom the publication was directed.? _S_e_<e_lig, supra. In ??e_lig,
the court considered the ?irreverence? of a morning radio program ?which may strike some as
humorous and others as gratuitously disparaging? in determining that ?no reasonable listener?
could take the challenged statements as factual pronouncements.? at 811. ?Where potentially
defamatory statements are published in a . . . setting in which the audience may anticipate efforts
by the parties to persuade others to their positions by use of epithets, ?ery rhetoric or hyperbole,

language which generally might be considered as statements of fact may well assume the

character of statements of opinion.? Gregory v. McDonnell Douglas Corp. (1976) 17 Cal. 3d
596, 601. For example, ?online blogs and message boards are places where readers expect to see
strongly worded opinions rather than objective facts.? Summit Bank v. Rogers (2012) 206 Cal.
App. 4th 669, 696-97.

Plaintiff alleges that on 7/15/15, AL falsely accused plaintiff of being a ?cocaine addict?
on Twitter.

Defendant argues that his tweet is not a statement of provable fact; rather, it is clear
rhetorical hyperbole based on an examination of the context, the understanding of the audience,
and the totality of the circumstances. Defendant contends that Twitter is known for hyperbole.
Twitter users will not be inclined to View heated tweets as stating provable facts. Defendant is
known for insult and hyperbole. His audience knows that he uses rhetorical accusations of drug'
and alcohol abuse as a way to express disagreement with political positions. He also reacts with
anger to homophobia. Further, plaintiff is known for insult and hyperbole. His followers know
that he is routinely at the center of heated political rhetoric. Defendant argues that his audience
will not expect heated exchanges with him to contain provable statements of fact. Further,
defendant?s tweet came as part of a pattern of insult towards plaintiff. The tweet was the latest in
a series of insults. Moreover, the tweet echoed a Twitter in?j oke. Twitter users routinely use the
?cocaine? insult to respond to plaintiffs political rants. Further, the insult was not offered in the
abstract; it came in response to plaintiff?s statement suggesting that the media should be
concerned with abortion and not Catlin Jenner?s dress selection. Plaintiff referred to Caitlyn by
her former name, Bruce Jenner, making the ?expression more pungent to a gay rights activist like
Mr. Doe.? Defendant also argues that as he is anonymous and tweets under a pseudonym,
California courts recognize that statements by anonymous internet sources are less likely to be
seen as statements of fact. His tweet was not formal?it was a sentence fragment, not a carefully

crafted and grammatical statement. The tweet did not include any indicia of reliability.

In opposition, plaintiff contends that the tweet is a statement of provable fact. Plaintiff
contends that Twitter ?boasts it is ?an easy way to discover the latest news related to subjects you
care about.? Weinsten decl., Exh. C. And, that 63% of Twitter users say that the platform
serves as a source of news about events and issues for them.? Weinsten decl., Exh. D. Plaintiff
argues that Twitter has been adopted by the mainstream media and public at large as a reliable
source of information, and that it has had an extremely in?uential impact not only on society, but
society?s perceptions and beliefs. While conversations on Twitter can and do include opinion,
jokes, and hyperbole, it cannot be ignored that people believe what they read on Twitter. As to
his own Twitter account, he contends that he is a proli?c user of Twitter and regularly tweets his
opinions on entertainment, social and political issues of general interest. His followers include
newscasters, entertainment celebrities, professionals, employers, friends, enemies, fans, and
others interested in his views. Defendant AL is also an avid user of Twitter. He tweets on
various subjects including politics, economics, gay rights, and national and international news,
events, and issues. Plaintiff contends that AL has openly shared on Twitter his disdain for
plaintiff. As to whether the statement is ?hyperbole,? hyperbole is an exaggeration of fact. The
tweet was not an exaggeration of anything, ?just a plain and false statement that Mr. Woods is a
cocaine addict.? See also declaration of Prof. Edward Finegan, an expert linguist, who states in
his declaration that ?nothing in the Tweeted words ?cocaine addict James Woods still snif?ng
and spouting? suggests that it should be interpreted as hyperbolic.?

Plaintiff further argues that the statement is not provable false because ever been a ?cocaine addict.? He has never used cocaine. He also contends that the tweet
was not ?anonymous? but was made under a false name.

In reply, defendant argues that plaintiff purported expert testimony on a question of law
is inadmissible. Further, the testimony focuses only on plaintiff?s tweet and defendant?s tweet in

response. The testimony does not address the totality of the circumstances. Defendant reiterates

that his tweet is a ?gurative insult, not a statement of fact. Further, defendant argues that,
plaintiff? own words and tone on Twitter are not irrelevant because they are part- of the larger
context. As an example, in 2013, someone tweeted ?@RealJamesWoods Have never heard
logical argument against Obama just slogans and labels from you, Jon Voight, Giuliani, all RW
shit-heads,? and in response, plaintiff tweeted, ?Well, put down your crack pipe, and retread my
timelines. You?ll ?nd plenty there.? Twitter is a place where plaintiff also ?constantly and
vigorously insults and engaged in in?ammatory language, to the point that he?s been widely
branded a ?troll.?? Reply, at 6.

Defendant?s objections to the declaration of Edward Finegan, and the declaration of
Michael Weinsten are SUSTATNED as improper legal opinion and opinion evidence on a
question of law. ?There are limits to expert testimony, not the least of which is the prohibition
against admission of an expert?s opinion on a question of law.? Summers v. A.L. Gilbert Co.
(1999) 69 Cal. App. 4th 1155, 1178. See also Nevarrez v. San Marino Skilled Nursing 
Wellness Ctr. (2013) 221 Cal. App. 4th 102, 122 (?an expert may not testify about issues of law
or draw legal conclusions.? .

Plaintiff?s objections are OVERRULED.

The court ?nds that as a matter of law, in consideration of the totality of the
circumstances, the tweet at issue is not a statement of fact but rather ?rhetorical hyperbole,
vigorous epithets, lusty and imaginative expressions of contempt and language used in a loose,
?gurative sense? that does not support a defamation action. Se_elig, supra. The tweet cannot be
reasonably interpreted as stating actual facts about James Woods. Both tweets were in the
context of expressing in?ammatory opinions. There were no indicia of reliability as to
defendant?s tweet.

Plaintiff has not met his burden of showing a probability of prevailing.

The motion is GRANTED. Defendant is entitled to his attorney?s fees.

It is so ordered.

Dated: February 2, 2016

 

MEL RED RECANA
Judge of the Superior Court

10