LUJN



FILED

Sulm'im' Court Uf' 

Superior Court of California County at? Angela;

 

County of Los Angeles    
Department 36 Sherri R. Camry. Executive Officer/Clerk
By  aDePUty
I Douglas Canada
WILLIAM JAMES MITCHELL, Case No.: I9STCV12592
Plaintiff, Hearing Date: 10/ 1 5/2020
v. [w RULING RE: Defendant?s

TWIN GALAXIES, and Does 1?10, Special Motion to Strike 

inclusive, Defendant?s Motion for Undertaking

Defendants.

 

 

 

 

Defendant?s Special Motion to Strike is denied.
Defendant?s Motion for Undertaking is granted. Plaintiff is to post a bond in the amount of

$81,225.00 within 30 days ofthis order. (CCP 

Background

This case arises out of allegedly defamatory statements made by Twin Galaxies, LLC
(?Twin Galaxies?), which operates the website that publishes score
records on leaderboards for video games and provides forums for discussion on video games.
(See Hall Dec1., 1111 Twin Galaxies? leaderboards? records and rankings have been
historically recognized as of?cial records of achievement in Video games and have been used by
Guinness World Records. (1d. 11 7.)

Plaintiff William James (?Billy?) Mitchell is a well-known ?gure in the video game
community for his records in several video games including Donkey Kong, Pac-Man, and others.
(PAC, 1 1.) Plaintiff ?rst became prominent in the 1980S, when he was included in a photo

spread of game champions in Life Magazine. (PAC, 1 1.) In 1999, Plaintiff achieved the first

 



?00~40xtn4perfect score on the original Pac-Man. (FAC, 112.) In the 20003, Plaintiff set record scores of
1,047,200 on Donkey Kong (the ?King of Kong ?tape??) and 1,050,200 on Mortgage Brokers
(the ?Mortgage Brokers score?). (FAC, 13.) Plaintiff has appeared in several documentaries on
competitive gaming, including The King ofKong: A Fistful of Quarters (2007) and is owner of
?Rickeys? Hot Sauce.? (F AC, 1111 5-6.)

On April 12, 2018, Twin Galaxies published a statement that it would remove Plaintiff?s
scores from its leaderboards and ban Plaintiff from participation in the leaderboards. Twin
Galaxies stated:

[Mitchell's] taped Donkey Kong score performances of 1,047,200 (the King of

Kong "tape"), 1,050,200 (the Mortgage Brokers score) that were historically used

by Twin Galaxies to substantiate those scores and place them in the database were

not produced by the direct feed output of an original unmodi?ed Donkey Kong

Arcade PCB. . . .

From at Twin Galaxies viewpoint, the only important thing to know is whether or

not the score performances are from an unmodified original DK arcade PCB as

per the competitive rules. We now believe that they are not from an original

unmodi?ed DK arcade PCB, and so our investigation of the tape content ends

with that conclusion and assertion. . . .

With this ruling Twin Galaxies can no longer recognize Billy Mitchell as the 
million point Donkey Kong record holder.

18.)

Plaintiff asserts this statement is defamatory and false because it claims Plaintiff did not
achieve his record scores legitimately through the competitive rules, by cheating. (PAC,

1 19.) Plaintiff counters that his scores were made on certi?ed arcade boards in front of hundreds
of people, and, that an investigation preceding this statement made by Twin Galaxies was biased
as under Twin Galaxies? new ownership by Jason ace?) Hall. (PAC, 1111 23-25.)

Defendant Twin Galaxies has ?led a Special Motion to Strike, asserting that Twin
Galaxies? statement was made at the request of forum members after a technical investigation;
and that allowing Plaintiff to use the courts to recover for defamation would have chilling effects
on the freedom of speech, setting a precedent for others to challenge the public debate on video
game scores in courts. (See Mot. at pp. 1-2.) Plaintiff has opposed. Defendant has filed a reply.
Plaintiff has filed a sur?reply.

 






 

 

Defendant Twin Galaxies also has ?led a Motion for Undertaking, on grounds that
Plaintiff resides out-of-state, and that there is a reasonable possibility that Defendant will obtain
judgment in the matter, which largely mirrors the grounds for its Special Motion to Strike.

Plaintiff has opposed. Defendant has ?led a reply.

1. Special Motion to Strike 

1. Evidentiarv Objections

Plaintiff?s Request to Strike Defendant ?s Evidentiary Objections to Sur-Reply

Plaintiff on October 7, 2020, ?led an objection and request the court strike Defendant?s
evidentiary objections ?led on September 28, 2020, to Plaintiffs declaration ?led with a sur-
reply brief.

Plaintiff?s request is denied. The objection is overruled. This court has not issued a ruling
that it would not consider an objection to evidence submitted with Plaintiff?s sur-reply, such that
the objections constitute a pleading ?not drawn or ?led in conformity with . . . an order of the

court.? (CCP 436.) The court considers the objections.

Defendant?s Objections to Stir-Reply Evidence

Defendant on September 28, 2020 ?led objections to Plaintiff?s supplemental declaration
?led on September 25, 2020, and the Declaration of Walter Day attached as Exhibit 1 to the
same declaration.

Defendant objects to Plaintiff?s entire declaration ?led on September 25, 2020 on
grounds that the declaration is unsigned. Plaintiff re-submitted a signed declaration on October 1,
2020. The general rule is new evidence is not permitted within reply papers while the court has
discretion to admit these forms of reply papers. (Jay v. Mahqffey (2013) 218 Cal.App.4th 1522,
1537?38.) A trial court has discretion whether to accept new evidence in reply papers. (Alliam?
Ins. Services, Inc. v. Gaddy (2008) 159 Cal.App.4th 1292, 1308.) The inclusion of additional

evidentiary matter with the reply is only allowed in ?the exceptional case? and, if permitted, the

 






 

 

other party should be given the opportunity to respond. (Jay v. Maha?ey, 218 Cal.App.4th at
1538.)

Considering the foregoing, the court considers Plaintiffs re?submitted declaration filed
October 1, 2020. Objection 174 is OVERRULED.

The remaining objections to the supplemental evidence submitted with Plaintiffs sur-
reply are ruled on as follows:

Mitchell Declaration: OVERRULED: 175, 177, 178, 179, 180, 182-185, 187-192.
SUSTAINED: 176, 181, 186.

Day Declaration: OVERRULED: 194, 196, 197. SUSTAINED: 193, 195, 198.

Defendant ?5 Objections to Opposition Evidence
The court rules as follows on Plaintiffs declaration ?led on June 22, 2020, and the
declaration of Walter Day attached as Exhibit 1 to the same declaration:
Mitchell Declaration and Exhibits:
OVERRULED: 1, 2, 6-10, 12-14, 18, 26-28, 30-33, 36, 37, 40-44, 46-49, 51, 53-
55, 57, 61, 63-65, 70-72, 75, 79, 
145,147,148, 153,154,157,158-168,171, 173.
SUSTAINED: 11, 15, 16, 17, 19-25, 29, 34, 35, 38, 39, 45, 50, 56, 58, 60, 62, 66,
67, 73, 74, 76-78, 80-85, 98-100, 104-114, 132,133,135, 136,139, 142,144,145, 146, 149,
172.
SUSTAINED IN PART: 3 (?As a result . . . as a professional gamer?); 4 (?Twin
Galaxies personally coordinated . . . before locking the machine entirely?); 5 (?and Shirk
con?rmed . . . throughout the performance?); 52 (?In summary, the . . . allegation of cheating?);
59 (?As stated previously . . . in allegations of fact?); 68 learned about this . . . in a class-
action lawsuit.? ?It never contacted . . . contact from Hall?); 69 (?The refusal of two . . . contact
from Hall?); 92 (?Therefore, the defamation . . per quod determination?); 97 (?and there is no

argument . . . these special damages?).

 

gb-Plaintiff ?s Objections to Defendant?s Moving Evidence
The court rules as follows on Plaintiff?s objection to the declaration of Jason Hall

submitted March 30, 2020: OVERRULED: 1, 2. SUSTAINED: 3, 4.

2. Moving Defendant?s Requests for Judicial Notice
Moving Defendant requests judicial notice of the Complaint in the action Mitchell v. The
Cartoon Network, Inc, et al. (D.N.J., Nov. 20, 2015), Case No. and
the Opinion of Hon. Judge Anne E. Thompson of November 20, 2015 in the same action.
Judicial notice is granted of each request. (CEC The court notes that it may
take judicial notice of the existence of a factual ?nding in another proceeding but not the truth of
that ?nding. (Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 120; see
Sosinsky 12. Grant (1992) 6 Cal.App.4th 1548, 1564?65.) court may take judicial notice of
[another] court's actionprove the truth of the facts found and
recited. [Citations.]? (Steed, 204 Cal.App.4th at 120 (quoting O'Neill v. Novartis Consumer
Health, Inc. (2007) 147 Cal.App.4th 1388, 1405) (emphasis in original).)

3. Timely Filing under CCP 8 425.16

 

A special motion to strike ?may be ?led within 60 days of the service of the complaint or,
in the court?s discretion, at any later time upon terms it deems proper.? (CCP 
Moving Defendant ?led this motion on March 30, 2020, in relation to the First Amended
Complaint served by mail on March 12, 2020. (FAC, Proof of Service.) The motion is thus

timely.

4. Legal Standard

A special motion to strike ?may be ?led within 60 days of the service of the complaint or,
in the court?s discretion, at any later time upon terms it deems proper.? (CCP 
In determining whether to grant or deny a Code of Civil Procedure section 425.16 special motion

to strike, the court engages in a two-step process. (Shekhter v. Financial Indemnity Co. (2001) 89

 







Cal.App.4th 141, 150.) First, the court must decide whether the moving party has met the
threshold burden of showing that the plaintiff?s cause of action arises from the moving party?s
constitutional rights of free speech or petition for redress of grievances. (Id) This burden does
not require a defendant to prove subjective intent to chill the defendant?s exercise of
constitutional speech or petition rights. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29
Cal.4th 53, 58.) This burden may be met by showing the act which forms the basis for the
plaintiffs cause of action was an act that falls within one of the four categories of conduct set
forth in Code of Civil Procedure Section 425.16, subdivision 

(1) any written or oral statement or writing made before a legislative, executive, or

judicial proceeding, or any other of?cial proceeding authorized by law, [11]

(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, [11]

(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, or 

(4) 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.

If the defendant meets this initial burden, the burden shifts to the plaintiff to establish a
probability of prevailing on the claim by presenting facts which would, if proved at trial, support
a judgment in the plaintiff?s favor. (Shekhter, 89 Cal.App.4th at 150-51.) In making its
determination on this prong, the trial court is required to consider the pleadings and the
supporting and opposing affidavits stating the facts upon which the liability or defense is based.
(Church ofScientology v. Wollersheim (1996) 42 Cal.App.4th 628, 646.) The plaintiffs proof
must be made upon competent admissible evidence. (Sweerwater Union High School Dist. v.
Gilhane Building C0. (2019) 6 Cal.5th 931, 940.) The court ?does not weigh evidence or resolve
con?icting factual claims.? The court?s inquiry ?is limited to whether the plaintiff has stated
a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable
judgment? accepting the plaintiff?s evidence as true. (Id) ?The court evaluates the defendant?s

showing only to determine if it defeats the plaintiff?s claim as a matter of law. [Citation]

 






 

 

?[C]laims with the requisite minimal merit may proceed.?? (Id; see also Navellier v. Sletten

(2002) 29 Cal.4th 82, 89.)

5. Discussion

Prong One: Protected Activity

 

The court ?rst decides whether the moving party has met the threshold burden of
showing the plaintiff? 5 cause of action arises from the moving party?s constitutional rights of free
speech or petition for redress of grievances. (Shekhter v. Financial Indemnity Co. (2001) 89
Cal.App.4th 141, 150.) The moving defendant must identify ?all allegations of protected
activity? and show that the challenged claim arises from that activity. (Bel Air Internet, LLC v.
Morales (2018) 20 Cal.App.5th 924, 934.) The statutory phrase ??arising from? means the
defendant's act underlying the plaintiffs cause of action must itself have been an act in
furtherance of the right of petition or free speech.? (City of Cotati v. Cashman (2002) 29 Cal.4th
69, 78 (emphasis in original).)

Moving Defendant asserts Plaintiff?s causes of action arise from Twin Galaxies?
protected activities as a ?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? under Code of Civil Procedure,
Section or alternatively, as 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? under Code of Civil Procedure, Section 

(Mot. at p. 6.)

(1) Public Forum

The court agrees that Twin Galaxies? statements were made in a public forum.
Websites accessible to the public such as newsgroups are ?public forums? for purposes of
the statute. (Barrett v. Rosenthal (2006) 40 Cal.4th 33, 41, at fn. 4.) A court may

consider whether the website is ?a place that is open to the public where information is freely

7

 






 

 

exchanged.? (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1007.)

The statements were made by Twin Galaxies on its website forums, which are accessible
to the public, and where members of the public exchange conversation on video game topics.
(Hall Decl., 21, 38.) The thread questioning Plaintiff?s scores was initiated by a Twin
Galaxies website registered user in a forum provided for users to dispute the veracity of a Twin
Galaxies veri?ed score appearing on a leaderboard. (Hall Decl., 11, 20.) As of March 14,
2020, there were 170 unique contributors who commented in the thread, 211 users who voted,
and 3,770 content entries. (Hall Decl., 1] 23.) The forums for disputing scores are open to any
registered user of the website. (Hall Decl. 1] l2.) Defendant?s statements were made in in that
thread. (Hall Decl., 1] 38.)

Plaintiff on opposition does not dispute that the statements were made in a public forum.

(2) Issue of Public Interest

The court also agrees that Twin Galaxies? statements involved an issue of public interest.
As stated by the Supreme Court in ilmOn. com Inc. v. Double Verzfv Inc:

In articulating what constitutes a matter of public interest, courts look to certain

speci?c considerations, such as whether the subject of the speech or activity ?was

a person or entity in the public eye? or ?could affect large numbers of people

beyond the direct participants? [Citation]; and whether the activity ?occur[red] in

the context of an ongoing controversy, dispute or discussion? [Citation], or

?affect[ed] a community in a manner similar to that of a governmental entity?
[Citation].

((2019) 7 Cal.5th 133, 145?46.)

First, Plaintiff as the subject of Defendant?s statements is a person ?in the public eye.?
(Wilbanks v. Walk (2004) 121 Cal.App.4th 883, 898.) As stated in Plaintiff?s Complaint, Plaintiff
?rose to national prominence in the 1980?s when Life magazine included him in a photo spread
of game champions.? (FAC, 1] 1.) Plaintiff achieved the ?rst perfect score on the original Pac-

Man in 1999, causing Namco to bring him to Japan for the Tokyo Game Show and named him

the ?Video Game Player of the Century.? (FAC, 1] 2.) Plaintiff achieved record-breaking scores

 





Donkey Kong in the 20005. (FAC, 11 3.) In 2006, MTV selected Plaintiff as one of ?The 10
Most In?uential Video Gamers of All Time? and Oxford American published an article by David
Ramsay describing Plaintiff as ?probably the greatest arcade video game player of all time.?
(PAC, 1 4.) Plaintiff has appeared in several documentaries on competitive gaming. (PAC, 1 5.)
Plaintiff is also the owner of a hot sauce company, built in part on Plaintiffs fame as a video
game record-holder. (PAC, 1 6.)

Second, when an issue ?is not of interest to the public at large, but rather to a limited, but
de?nable portion of the public (a private group, organization, or community), the constitutionally
protected activity must, at a minimum, occur in the context of an ongoing controversy, dispute or
discussion, such that it warrants protection by a statute that embodies the public policy of
encouraging participation in matters of public significance.? (Du Charme v. International
Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107, 119.)

Defendant establishes that the issue of Plaintiff video games scores are of interest to the
video gaming community, and that its statements occurred in the context of an ongoing
controversy, dispute or discussion, to warrant protection under the statute?s public
policy of encouraging participation in matters of public signi?cance. As noted above,
Defendant?s statements were in a thread on its publicly-viewable website where members of the
video game community exchange conversation on video game topics. (Hall Decl. 1111 21, 38.) In
the forum thread on Plaintiff?s scores, as of March 14, 2020, there were 170 unique contributors
who commented, 211 users who voted, and 3,770 content entries. (Hall Decl., 1123.) The thread
had been viewed 2,394,329 times on Twin Galaxies? website as of the same date. Defendant
has also provided information on Twin Galaxies? engagement with the video gaming community
in the process of investigating the dispute and publishing its conclusion. Among other
contributors, after initiating the thread, the Twin Galaxies user Jeremy Young, under the
pseudonym Xelnia (Hall Decl. 11 20) in posts number 186 and 187 made a presentation in support
of the dispute. (Hall Decl. 11 25.) Twin Galaxies announced it would take up the dispute claim.
(Hall Decl. 1127.) Contributions to the discussion were made by, among others, Robert Childs,

who assisted Plaintiff in the original recording of his score performances (Hall Decl. 1111 29-31)

 






 

 

that Twin Galaxies attempted to replicate with four staff members and published as post number
2387 (Hall Decl. 32-33). Twin Galaxies held a four-plus hour live public discussion stream,
reviewing the performances. (Hall Decl. ii 34.)

The foregoing differs from the circumstances in ilmOn. com Inc. v. Double Veri?t
Inc. (2019) 7 Cal.5th 133 (F ilmOn. com). There, reports made by DoubleVerify Inc, a for-pro?t
company that offers online tracking, veri?cation, and ?brand safety? services to internet
advertisers, which generated con?dential reports for profit and exchanged them con?dentially
without being part of an attempt to participate in a larger public discussion, did not qualify for
protection, despite the topic itself being one of public interest. (F ilmOn. com, 7
Cal.5th at 140.)

Plaintiff in the opposition does not dispute the statement was one that involved an issue
of public interest. Accordingly, Defendants meets the burden to Show that Plaintiff? 3 claims
arose from statements in connection with an issue in the public interest. The burden thus shifts to

Plaintiff to establish a probability of prevailing on his claims. (CCP 

Prong Two." Probability of Prevailing on the Merits

The burden shifts to Plaintiff Mitchell to establish a probability of prevailing on the claim
by presenting facts which would, if proved at trial, support a judgment in Plaintiff?s favor.
(Shekhler, 89 Cal.App.4th at 150-51.) Plaintiff?s proof must be made upon competent admissible
evidence. (Sweetwater Union High School Dist. v. Gilbane Building C0. (2019) 6 Cal.5th 931,
940 (Sweetwater).) The court ?does not weigh evidence or resolve con?icting factual claims.?
(Id) The court?s inquiry ?is limited to whether the plaintiff has stated a legally sufficient claim
and made prima facie factual showing suf?cient to sustain a favorable judgment? accepting the
plaintiffs evidence as true. (Id) ?The court evaluates Defendant?s showing only to determine if
it defeats Plaintiff 5 claim as a matter of law. [Citation] ?[C]laims with the requisite minimal

merit may proceed.? (161.; see also Navellier v. Sletten (2002) 29 Cal.4th 82, 89.)

I Defamation

10

 





Defamation constitutes an injury to reputation. (Shively v. Bozaniclz (2003) 31 Cal.4th
1230, 1242, as modified (Dec. 22, 2003).) It may occur by means of libel, which is ?a false and
unprivileged publication by writing, printing, picture, ef?gy, or other ?xed representation to the
eye, 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.? (Civ. Code, 
45; see Shively, 31 Cal.4th at 1242.)

A threshold issue is whether the plaintiff is a public ?gure. The Plaintiff has stated he
assumes for purposes of the instant motion that he is at least a limited purpose public ?gure with
respect to video game playing, which is the subject of the instant controversy. (Opp. at p. 12.) In
light of the Plaintiff?s public and longstanding career in the video game industry as alleged in the
PAC and Plaintiff declaration, the court accepts this acknowledgement. (See, e. g, Decl. 2-
5.)

As such, here Plaintiff is subject to the additional requirement to recover for defamation
?unless he proves, by clear and convincing evidence [Citation], 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, 256
(Reader?s Digest) (quoting New York Times Co. v. Sullivan (1964) 376 US. 254, 280 (New York
Times 

i. Statement of act

Defendant asserts that Plaintiff cannot establish falsehood in the statement made by
Defendant, because the statement made is one of opinion, not fact. Whether a statement is one of
fact or opinion is a question of law to be decided by the court. (Baker v. Los Angeles Herald
Examiner (1986) 42 Cal.3d 254,260.)

The court in Overstock. com, Inc. v. Gradient Analytics, Inc. summarized the court?s
analysis:

a false statement of fact, whether expressly stated or implied from an

expression of opinion, is actionable. [Citation] The key is not parsing whether a
published statement is fact or opinion, but ?whether a reasonable fact ?nder could

11

 






 

 

conclude the published statement declares or implies a provably false assertion of
fact.? [Citation] And, when deciding whether a statement communicates or
implies a provably false assertion of fact, we use a totality of the circumstances
test. [Citation] This entails examining the language of the statement. ?For words
to be defamatory, they must be understood in a defamatory Next, the
context in which the statement was made must be considered.? [Citation] The
contextual analysis requires that courts examine the nature and full content of the
particular communication, as well as the knowledge and understanding of the
audience targeted by the publication. [Citation]

((2007) 151 Cal.App.4th 688, 701 (0verst0ck).)

?[T]he relative anonymity afforded by the Internet forum promotes a looser, more relaxed
communication style.? (Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154, 1162.) However, ?the
mere fact speech is broadcast across the Internet by an anonymous speaker does not ipso facto
make it nonactionable opinion and immune from defamation law.? (Bently Reserve LP v.
Papaliolios (2013) 218 Cal.App.4th 418, 429.)

Twin Galaxies? statement reads in pertinent part:

Summary Decision:

Based on the complete body of evidence presented in this official dispute thread,
Twin Galaxies administrative staff has unanimously decided to remove all of
Billy Mitchell?s? scores as well as ban him from participating in our competitive
leaderboards. . . .

The rules for submitting scores for the original arcade Donkey Kong competitive
leaderboards requires the use of original arcade hardware only. The use of
MAME or any other emulation software for submission to these leaderboards is
strictly forbidden. . . .

Twin Galaxies has meticulously tested and investigated the dispute case assertions
as well as a number of relevant contingent factors, such as the veracity of the
actual video performances that the dispute claim assertions rely upon. . . .

Here are our speci?c ?ndings:

- The taped Donkey Kong score performances of 1,047,200 (the King of Kong
"tape"), 1,050,200 (the Mortgage Brokers score) that were historically used by
Twin Galaxies to substantiate those scores and place them in the database meLe
not produced by the direct feed output of an original unmodified Donkey Kong
Arcade PCB.

- The 1,062,800 (the Boomers score) Donkey Kong performance does not have
enough of a body of direct evidence for Twin Galaxies to feel comfortable to
make a de?nitive determination on at this time. . . .

- The 1047 and 1050 score performance videos we have in our possession (and
are basing our determinations on) are in fact the performances that were used by
previous Twin Galaxies administration as justification for those scores to be

 

12

 

entered into the database and for Twin Galaxies to attribute those speci?c
accomplishments to Billy Mitchell. We have several different and unique sources
of these performances and access to private historical Twin Galaxies referee e-
mail distribution records showing where these sources acquired their copies and
what the purpose was. . . .

From a Twin Galaxies viewpoint, the only important thing to know is whether or
not the score performances are from an unmodified original DK arcade PCB as
per the competitive rules. We now believe that they are not from an original
unmodi?ed DK arcade PCB, and so our investigation of the tape content
ends with that conclusion and assertion. . . .

With this ruling Twin Galaxies can no longer recognize Billy Mitchell as the
million point Donkey Kong record holder. . . .

(Hall Decl., Exh. (formatting in original).)

Contextually, the statement is presented as Twin Galaxies? ?conclusion? after the
investigation it undertook into the claims made by a member of its website forum. As discussed
above, Twin Galaxies provides a forum for public dispute on video game scores, in which
members may participate. After a dispute claim and dispute process, a Twin Galaxies
administrator decides to remove or not remove the contested score from its leaderboards. (Hall
Decl. 1111 13-15.) In this case, the dispute was extensive and resulted in a determination by Twin
Galaxies staff, based upon public comment and investigation, and Twin Galaxies? own inability,
and all known third party public investigation?s inability, to reproduce images and artifacts in
Plaintiff?s score performances. (See Hall Decl. 37-38.) Twin Galaxies then posted these
?ultimate ?ndings? in the claim thread. (See id. 11 38.)

Twin Galaxies? ?conclusion? includes the language ?We now believe that [the score
performances] are not from an original unmodified [Donkey Kong] arcade PCB . . . 3? Twin
Galaxies also makes the ?speci?c finding?: ?The taped Donkey Kong score performances of
1,047,200 (the King of Kong "tape"), 1,050,200 (the Mortgage Brokers score) that were
historically used by Twin Galaxies to substantiate those scores and place them in the
database were not produced by the direct feed output of an original unmodi?ed Donkey Kong
Arcade (Hall Decl., Exh. B.) A third ?specific finding? as to another Donkey Kong
(?Boomers score?) performance was that Twin Galaxies did ?not have enough of a body of direct

evidence for Twin Galaxies to feel comfortable to make a de?nitive determination on at this

13

 

\DOO?JO?xm-bwm?




 

 

 (1d)

Considering the foregoing, a reasonable fact ?nder could conclude the published
statement declares or implies a provably false assertion of fact, in particular, that Plaintiff?s King
of Kong ?tape? and Mortgage Brokers score were not produced by the direct feed output of an
original, unmodi?ed Donkey Kong Arcade PCB. In addition, a reasonable fact ?nder could ?nd
implied within this facts that actions were taken to make such circumstances occur. There is
support as well in that the third ?nding appears to imply that Twin Galaxies would only makes
?de?nitive determination[s]? based on suf?cient direct evidence. That the statement is then made
with qualifying language (?We now believe does not under the circumstances, considering
Twin Galaxies holding itself out as an arbiter of sorts of fact, necessarily make the statement into

one where a reasonable fact?nder would not understand it as fact. (See Overstock, 151

Cal.App.4th at 703.)

ii. Falsify

As a public ?gure for purposes of the instant dispute, plaintiff has the burden to prove not
only the falsity of the challenged statement, but also that defendant acted with ?actual malice.?
(New York Times C0., supra, at 279?280.) Falsity must be established by a preponderance of the
evidence. (Christian Research Institute v. Alnor (2007) 148 Cal.App.4th 71, 81 (Alrzor).)

To support his burden to prove falsity, ?rst, Plaintiff attests that the King of Kong ?tape?
was made on an original unmodi?ed PCB. (Mitchell Decl. 11 9.) Plaintiff cites to evidence, for the
Mortgage Brokers score, that there was on-site referee adjudication and that the hardware was
veri?ed by the Senior Engineer at Nintendo. Walter Day, the founder and former owner of Twin
Galaxies, attests to the on-site referee adjudication, and Plaintiff has submitted declarations by
the referees Todd Rogers and Kimberly Mahoney. (Mitchell Decl. Exh. 1, 11 5 (Day Decl.); Exhs.
9, 10 (Rogers and Mahoney Decls.).) The referees attest to the integrity of the arcade machine,
and that the machine was an original Donkey Kong Arcade machine with original unmodi?ed
hardware. (See Rogers Decl. 11 6; Mahoney Decl. 3, 4.) Next, Plaintiff attests to having

complied with Mr. Day?s requirement to verify hardware with the Senior Engineer at Nintendo,

14

 

LUJN



Wayne Shirk; and attests that he never accessed hardware before or after the performance.
(Mitchell Decl. 1125.) Plaintiff also provides evidence in support of the Donkey Kong ?tape?
showing that the score could be achieved; this evidence, however, supports that the scores were
achievable, rather than going to the integrity of the hardware itself. (See Mitchell Decl. Exh. 21
(Lakeman Decl.).) Last, Plaintiff provides testimony that the possibility of Plaintiff using
MAME emulation for the scores is unlikely or impossible because the speci?c version of MAME
alleged was not created until after the King of Kong ?tape?. (Mitchell Decl. 1149.)

Defendant asserts that it can prove the truth of the statements. Defendant offers evidence
in support that the scores could not have been made on an original unmodi?ed PCB in the
declarations of Jason Hall and Carlos Pineiro. Mr. Hall attests that Twin Galaxies tested the
scores by attempting to reproduce certain artifacts on the girders drawn in the game, including a
?Girder Finger? that appeared in the King of Kong ?tape? and the Mortgage Brokers score, and
was not able to capture the same artifacts in its testing. (See Supp?l Hall Decl. 17-18.) Mr.
Pineiro attests that the person who started the dispute claim also demonstrated that the Girder
Finger could not be reproduced form an unmodi?ed original PCB. (See Pineiro Decl. 10-12.)
Mr. Pineiro was also unable to reproduce the same artifacts. (See id. 16, 18.)

There is therefore a dispute in the evidence as to the truth or falsity of the statement.
However, the court?s inquiry on an motion ?is limited to whether the plaintiff has
stated a legally suf?cient claim and made a prima facie factual showing suf?cient to sustain a
favorable judgment? accepting the plaintist evidence as true, and not weighing the evidence or
resolving factual disputes. (Sweerwater, supra, at 940.) The court does not ?nd Plaintiff?s claim

of falsity has been defeated as a matter of law. 

Actual Malice

As a public ?gure for purposes of the instant dispute, plaintiff has the burden to prove
that defendant acted with ?actual malice.? (New York Times C0., supra, at 279-280.) Plaintiff has
the burden to prove actual malice by clear and convincing evidence, requiring Plaintiff to

demonstrate by ?a ?nding of high probability? that Twin Galaxies ?either knew [the] statement

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was false or subjectively entertained serious doubt [the] statement was truthful.? (Alrtor, 148
Cal.App.4th at 84.)

To demonstrate actual malice, a plaintiff may rely on inferences drawn from
circumstantial evidence. (Id at 84.) Such inferences may be drawn from circumstantial evidence
of a failure to investigate; anger and hostility towards the plaintiff; or reliance on sources known
to be unreliable or known to be biased against the plaintiff. (Reader?s Digest, supra, at 258.) The
evidence is relevant only to the extent that it re?ects on the subjective attitude of the publisher.
(1d) The failure to conduct a thorough and objective investigation, standing alone, does not
prove actual malice; and mere proof of ill will alone may likewise be insufficient. (Id) ?the
failure to investigate must fairly be characterized as demonstrating the speaker purposefully
avoided the truth or deliberately decided not to acquire knowledge of facts that might con?rm
the probable falsity of charges.? (McGarry v. University of San Diego (2007) 154 Cal.App.4th
97, 114.)

Plaintiff asserts that Plaintiff?s evidence shows that statements made, sources not
interviewed, and acts taken during the dispute claim investigation indicate subjective doubt as to
the accuracy of the statements; and that Defendant?s statements were made with reckless
disregard for the truth, in particular that statements made by Defendant?s principal Mr. Hall
indicate the dispute claim investigation was decided before completion of Twin Galaxies?
investigation; and that the evidence supports a purposeful avoidance of the truth.

In support, Plaintiff offers evidence that (1) Mr. Hall, before the completion of the
diSpute claim investigation, told Mr. Day that Mr. Hall ?didn?t care? about referees who could
verify the hardware; (2) Twin Galaxies did not contact these referees; (3) Twin Galaxies
disregarded veri?cation of the hardware by a Senior Engineer of Nintendo; (4) Twin Galaxies
used biased investigators; and (5) Twin Galaxies, despite its defense that it followed its internal
rules on its methods of contacting sources who could verify the scores, in fact contacted other
sources outside of those rules. Plaintiff asserts that foregoing shows actual malice, in particular
because there was no need to rush to publish the statement. (See Widener v. Paci?c Gas 

Electric Co. (1977) 75 Cal.App.3d 415, 434, disapproved ofon other grounds by McCoy v.

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Hears! Corp. (1986) 42 Cal.3d 835.)

Plaintiffs evidence supports that on a phone call to Mr. Hall on February 24, 2018,
Plaintiff urged Hall to interview Twin Galaxies personnel and eyewitnesses to Plaintiffs scores,
and that Mr. Hall refused and stated he ?doesn?t care what anybody says.? (Mitchell Decl. 11 44.)
Plaintiffs evidence supports that Mr. Hall made a website post stating that, because Twin
Galaxies? dispute concerned whether the performances were made by MAME recordings and not
original arcade gameplay, it ?[d]oes not matter one bit what someone knew or didn?t know. TG
does not care about certi?ed boards, or any other non-relevant item to the diSpute claim. What
matters is the actual content on the tape(s) as it stands. . . . Either the performances on the tapes
were produced by original DK hardware, or they were not.? (Mitchell Dec]. 11 45, Exh. 27.)
Plaintiff attests that Mr. Hall in phone conversations in April 2018 again refused to interview
Plaintiffs proposed witnesses and documentation, stating that ?it doesn?t matter? and that Mr.
Hall ?didn?t care.? (Mitchell Decl. 11 61.)

Plaintiff provides evidence that Mr. Hall telephoned Mr. Day on March 13, 2018, roughly
one month prior to Twin Galaxies? statement, during which Mr. Hall asked, ?How will you feel
when announce that Billy [Mitchell] cheated?? (Mitchell Decl., Exh. 1 11 8 (Day Decl.).)
Plaintiff alleges this shows that Twin Galaxies? decision had already been made prior to
completion of Twin Galaxies? investigation, and prior to a Facebook broadcast reviewing
videotapes of Plaintiffs scores. (See id. 11 54.) Plaintiff provides evidence that Twin Galaxies did
not contact referees of the Mortgage Brokers score who attest to the hardware?s integrity. (See
Mitchell Decl. 11 84; Exh. 9; Exh. 10,11 6.)

Defendant asserts that it defeats Plaintiffs claim of actual malice as a matter of law.
Defendant relies on its investigation process and the rules of its dispute claim process.

Mr. Hall attests Twin Galaxies did not interview eyewitnesses because there was no
evidence that the King of Kong ?tape? was live, such that eyewitness testimony would provide
relevant information; because Plaintiff did not identify witnesses by name; because Plaintiff did
not post evidence in the dispute claim thread relating to a live performance prior to the statement;

and because evidence of live performances is irrelevant to the dispute. (Hall Decl. 1122.) It

17

 

45-kaappears Defendant through Mr. Hall considered the relevant dispute to be whether or not the
performances on videotape performances were in fact captured from an unmodi?ed original
and that as a result, the only relevant evidence was that relating to the video recordings,
and not to the machines. (See, Supp?l Hall Decl. 8.)

The court is not persuaded that such limitation defeats Plaintiff?s claim as a matter of
law; in particular, how an interview of referees to at least the Mortgage Brokers live performance
would not have been relevant to the integrity of the machines that the referees watched, when
Defendant?s statement concludes that the taped performances could not have been made on
original unmodi?ed hardware. Plaintiff has provided support of having requested referees be
interviewed prior to the release of the statement. (See, 2. Mitchell Decl. 1] 44.) In addition, the
status of the PCB hardware as original and/or unmodi?ed appears to be at least supportable by
Nintendo?s Senior Engineer by veri?cation; and Defendant has not provided a reason for failure
to investigate this information after Plaintiff requested. The failure sounds rather in avoidance of
information, rather than a failure to investigate, considering Mr. Hall?s af?rmative refusals and
Plaintiff 5 requests.

Next, the court does not follow the logic that Defendant?s internal rules, providing that
only evidence submitted in the dispute claim thread would be considered, provides Defendant a
legal defense to the tort of defamation. (See Supp?l Hall Decl. 11 16.) Defendant has not provided
authority as to how its internal processes have legal effect.

The court last considers the allegation that Defendant did not harbor doubt as its
statement was made on Twin Galaxies? investigation in the dispute claim thread and based on
Mr. Pineiro?s conclusion as well that the performances could not have been made on an original
unmodi?ed PCB. Again, however, such facts are offered in support that the Defendant did not
harbor doubt but is insuf?cient to defeat Plaintiff?s claim as a matter of law, where the court
cannot not weigh con?icting evidence on the motion.

Based on the foregoing, Plaintiff satis?es the burden on the motion of a
prima facie case supporting actual malice, suf?cient to overcome the burden of ?minimal merit.?

(Sweetwater, supra, at 940.)

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iv. Special Damages

libel which is defamatory of the plaintiff without the necessity of explanatory matter,
such as an inducement, innuendo or other extrinsic fact, is said to be a libel on its face.
Defamatory language not libelous on its face is not actionable unless the plaintiff alleges and
proves that he has suffered special damage as a proximate result thereof.? (Civ. Code, 45a.)
??Special damages? means all damages that plaintiff alleges and proves that he or she has
suffered in respect to his or her property, business, trade, profession, or occupation, including the
amounts of money the plaintiff alleges and proves he or she has expended as a result of the
alleged libel, and no other.? (Civ. Code, 

Defendant argues that Plaintiff has not pled special damages with respect to Defendant?s
statement, which Plaintiff must do as the statement is libel per quad. Plaintiff asserts the
statement is rather libel per se, and that regardless Plaintiff has suffered direct damages in loss of
sales in Plaintiff 5 hot sauce business.

Even if the statement is one of libel per quad, Plaintiff has offered adequate evidence in
support of special damages. Plaintiff provides evidence that his public persona as established in
?The King of Kong: A Fistful of Quarters? is linked to the Rickey?s hot sauce business, through
publicity materials linking by appearance Plaintiff? 5 person, the ?lm, and the hot sauce brand.
(See, e. g, Mitchell Decl. 1111 125-127, Exhs. 51?54.) Plaintiff next has brought evidence that in
2018 through 2019 revenue for Rickey?s hot sauce sales went down, from an average of
$800,216 from 2013-2017 and actual sales of $796,068 in 2017, to $410,267 in 2018 and
$431,632.98 in 2019. (Mitchell Decl. 127-28, Exhs. 55-57.)

12. Common Interest Privilege

?In a communication, without malice, to a person interested therein, (1) by one who is
also interested, or (2) by one who stands in such a relation to the person interested as to afford a
reasonable ground for supposing the motive for the communication to be innocent, or (3) who is

requested by the person interested to give the information.? (Civ. Code, 

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DJ


kit-b




NM


 

 

Defendant asserts Twin Galaxies? statement is privileged under the common interest
privilege. Plaintiff asserts that because the statement was made to the public at large, it is
analogous to one made by a news outlet, and thus does not fall under the common interest
privilege. In light that the statement was made available to the public in general, the court agrees
with Plaintiff; a closer relationship between the publisher of information and the receivers of it.

(See Brown v. Kelly Broadcasting C0. (1989) 48 Cal.3d 711, 752.)

vi. Conclusion
Based on the foregoing, Defendant Twin Galaxies? special motion to strike Plaintiff?s

defamation cause of action is DENIED.

(2) False Light

For the same reasons, Defendant?s motion to the extent that it is alleged against
Plaintiff?s False Light cause of action is DENIED. The cause of action arises out of the same
publication on Defendant?s website and is alleged on the same substantive grounds. (Gilbert v.
Sykes (2007) 147 Cal.App.4th 13, 34 (collapse of defamation claim also defeats causes of action

arising from same publications on website).)

Motion for Undertaking (CCP 1030)

1. Evidentiarv Obiections

 

Plainti??s Objection to Defendant?s Evidence on Reply
Plaintiff objects to Defendant?s supplemental evidence submitted with its reply brief.
The general rule of motion practice is that new evidence is not permitted within reply
papers and the court has discretion to admit these forms of reply papers. (Jay v. Maha?ey (2013)
218 Cal.App.4th 1522, 1537?38.) A trial court has discretion whether to accept new evidence in
reply papers. (Alliant Ins. Services, Inc. v. Gaddy (2008) 159 Cal.App.4th 1292, 1308.) The

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LUJN



inclusion of additional evidentiary matter with the reply is only allowed in ?the exceptional case?
and, if permitted, the other party should be given the opportunity to respond. (Jay v. Mahq??ey,
218 Cal.App.4th at 1538.)

Defendant?s motion for an undertaking was ?led on September 22, 2020 after Defendant
had obtained permission for the court to consider Defendant?s supplemental evidence submitted
in support of its motion. In light that the grounds for Defendant?s motion primarily
rely on evidence already before the court, and that the motion largely mirrors Defendant?s anti-
SLAPP motion, the court does not consider the new evidence in declarations submitted with

Defendant?s reply brief.

2. Timely Filing
Defendant ?led its motion for an undertaking on September 22, 2020, for the hearing date

of October 15, 2020. The proof of service indicates timely electronic service on September 22,
2020. (CCP Plaintiff timely opposed on October 1, 2020. (1151.) Defendant timely
replied on October 7, 2020. (Id)

3. Legal Standard

When the plaintiff in an action resides out of the state, the defendant may, at any time,
apply to the court by noticed motion for an order requiring the plaintiff to file an undertaking to
secure an award of costs and attorney's fees which may be awarded in the action. (CCP 
1030(a); Shannon v. Sims Service Center, Inc. (1985) 164 Cal.App.3d 907, 913.) The motion
must be made on the grounds that the plaintiff resides out of the state and that there is a
reasonable possibility that the moving defendant will obtain judgment in the action. (CCP
1030(b); Shannon, supra, 164 Cal.App.3d at 913.) The motion must be accompanied by an
affidavit in support of the grounds for the motion that sets forth the nature and amount of the
costs and attorney?s fees the defendant has incurred and expects to incur by the conclusion of the
action. (161?)

?The determinations of the court under this section have no effect on the determination of

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any issues on the merits of the action or special proceeding and may not be given in evidence nor

referred to in the trial of the action or proceeding.? (CCP 

4. Discussion

(1) Declaration

Defendant has provided the declaration of David Tashroudian, counsel for Defendant.
Mr. Tashroudian attests that the Defendant anticipates Defendant will incur $81,225.00 in this
action. The amount consists of $7,875 in connection with a Code of Civil Procedure section
2033.420(a) motion, which Defendant expects to incur approximately 15 hours at counsel?s fee
rate of $525/hour; and $73,350.00 which primarily comprises the costs for 21 expected
depositions and ?ling fees of $1,350.00. (Tashroudian Decl. 11 6.) Defendant?s declaration
supports the statutory requirements of section 1030.

Plaintiff does not challenge the amount of the costs and fees requested by the Defendant,

and the court thus accepts the amount requested as reasonable.

(2) Out-of-State Residence
Defendant alleges Plaintiff lives out-of-state. (Mot. p. 7.) There is no dispute on this

point; and Plaintiff has alleged in the First Amended Complaint that Plaintiff?s state of residence
is Florida. (FAC 11 18; see generally Opp.)

(3) Reasonable Possibility of Defendant Obtaining Judgment

Defendant Twin Galaxies asserts it has a reasonable possibility of prevailing against
Plaintiff, because Plaintiff is unable to show that Defendant acted with the requisite
constitutional malice with respect to Defendant?s alleged defamatory statement. Defendant also
asserts there is a reasonable possibility that a will determine that the statement is true,
an affirmative defense to defamation. Plaintiff opposes on grounds that Plaintiff has a substantial

likelihood of prevailing and that Twin Galaxies thus cannot establish a reasonable possibility of

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prevailing; and that Defendant?s motion is prematurely brought at the start of litigation.

A motion requiring the plaintiff to post a security can be brought by a defendant ?at any
time.? (CCP The court does not ?nd persuasive Plaintiffs argument that the motion
is prematurely brought at this stage in the litigation; evidence has been brought to the court?s
attention by means of declarations at this stage in the litigation.

The court?s analysis on a motion for an undertaking is to determine only whether the
Defendant shows a ?reasonable possibility? of prevailing; the moving defendant is not required
to show there is no possibility that the opposing party could win at trial. (Baltayan v. Estate of
Getemyan (2001) 90 Cal.App.4th 1427, 1432.) An opposition on the merits thus must allege that
the moving defendant fails to make an adequate prima facie showing of a reasonable possibility
of success in the action.

Considering the evidence on this motion, the court finds that Defendant has satis?ed the
low burden to show a reasonable possibility of prevailing in this action. Defendant has supported
that its statement does not show actual malice, and on the instant motion the court is not
restricted in its consideration thereof. Defendant?s evidence in support of Defendant?s anti-
SLAPP motion, as discussed above, supports that Twin Galaxies did not harbor doubt as to the
truth of its statement, as its statement was made after Twin Galaxies? investigation on the
dispute. (See Hall Decl. 28-36 (detailing process of dispute investigation); 37?38
(conclusion based on investigation).) The testimony of Mr. Hall?s belief that eyewitness evidence
was unnecessary may reasonably go in the Defendant?s favor on this point, undermining
Plaintiff? 3 claim that Defendant acted with reckless disregard of the truth. Defendant has also
provided the declaration of Mr. Pineiro, which concludes that Plaintiff performances could not
have been made on an original unmodified PCB based on Mr. Pineiro?s analysis. (Supp?l Pineiro
Decl. 17-19.) Next, Plaintiffs showing that Plaintiff can show actual malice, discussed supra,
does not establish that Defendant cannot show a prima facie claim of a reasonable possibility of
prevailing on the issue of malice with the evidence weighed.

The same evidence goes toward Defendant?s affirmative defense of the truth of the

statement, which forms a complete defense to defamation, and provides support of a reasonable

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possibility of prevailing on this af?rmative defense. (See Campanelli v. Regents of University of
California (1996) 44 Cal.App.4th 572, 581.) Defendant has additionally provided the declaration
of David Race, who attests to having worked with Mr. Pineiros and having tested the hardware,
and an inability to reproduce the artifacts discussed above, supporting that the videotapes could
not have come from an original unmodi?ed Donkey Kong PCB. (See Race Decl. 19-20.)

In sum, Defendant Twin Galaxies meets its burden to demonstrate that Plaintiff is not a
California resident and that Defendant has a reasonable possibility of success in this action. The
court thus GRANTS Defendant?s motion for an undertaking. Plaintiff is to post a bond in the
amount of $81,225.00 within 30 days ofthis order. (CCP 

Dated:

  
 

OCT 2 6 2020

egory Alarcon

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