Superior Court of California
County of San Bernardino
Civil Division, Department S-33
303 West Third Street
San Bernardino, California 92415
GENERAL BACKGROUND
FILED-Central District
SUPERIOR COURT
SAN BERNARDINO COUNTY
OCT 2′ 2008 ~C- BY~~~ Deputy
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN BERNARDINO
SAN BERNARDINO DISTRICT
BENCHMARK YOUNG ADULT
SERVICES, INC., et al
Case No.: CIVSS 803920
Plaintiff,
RULING ON DEFENDANTS SPECIAL
MOTION TO STRIKE PURSUANT TO
CCP § 426.16
vs.
MICHAEL CRAWFORD, et al
Defendant.
21 This action arises from Benchmark Young Adult School, Inc. (“Benchmark”)
22 which is frustrated with a former “student,” defendant Michael Crawford (“Crawford”),
23 who has been quite vocal in his dissatisfaction with the time he spent in the program
24 (September 2001 through June 2002). Benchmark describes itself as a residential,
25 emotional growth, sober living, and independent living program for young adults ages
26 18-28, “dedicated to assisting ‘at risk’ young adults by fostering a positive environment
27 in which to provide guidance and the skills required to transition into the world of
28 / / /
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1 education, work, physical and emotional health, independence and emancipation.” 1
2 In 2006, Crawford created a website dedicated to “shutting down” the school,
3 listing his bad experiences and the results of his “investigations” into the field of such
4 facilities. He sent emails to educational consultants warning of his perceived problems
5 with the schooL. In November 2007, Crawford picketed the school and engaged in
6 disruptive behavior which required several calls to the police (although he was never
7 arrested).
8 Benchmark contends that the alleged defamatory statements on Crawford’s
9 website have caused it to suffer a significant drop in new enrollments, from 51 in 2006,
10 to 34 in 2007, and only 13 in 2008. As each enrollment is valued at approximately
11 $60,000 per year, this translated into a substantial economic loss.
12 A. Allegations of Complaint:
13 On March 26, 2008, Benchmark commenced this litigation by filing a complaint
14 alleging five causes of action:
15 1) Intentional Interference with Economic Relations;
16 2) Libel Per Se;
17 3) Libel;
18 4) Invasion of Privacy; and
19 5) Preliminary and Permanent Injunction.
20 Benchmark and its owner and CEO, co-defendant Jayne Longnecker (hereinafter
21 referred to collectively as Benchmark) allege that Benchmark is a “residential co-
22 educational emotional growth school dedicated to assisting troubled teens and young
23 adults who are between 18-28 years of age.” Longnecker is the principal shareholder 0
24 Benchmark. (,-,- 7, 8.) Crawford is a prior Benchmark “student” and attended from
25 approximately September 2001 until June 2002. m 9.)
26 Beginning in or about 2006, Crawford notified Benchmark he was creating a web
27 site with the purpose and intention of destroying Benchmark’s business. Consistent
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1 The court finds it difficult to classify Benchmark as it disclaims status as a school and does not have
credentialed teachers, yet also disclaims status as a residential treatment facility/program. As the parties
have used the terms “school” and “students” through.çut their documents, the court will adopt these terms,
but notes that use of the terms is for the reader’s ea-~-only and without factual support.
1 with this threat, shortly thereafter Crawford began a campaign of intimidation,
2 harassment and abuse against Benchmark and Longnecker that has continued to the
3 date of this lawsuit. (,- 10.)
4 ,- 11 alleges three categories of actions attributable to Crawford, detailed in
5 subdivisions (a), (b) and (c):
6 ,- 11 (a) alleges Crawford of “making defamatory statements to third parties,
7 including education consultants upon whom Benchmark relies to refer students to
8 its programs;
9 ,- 11 (b) alleges that around Thanksgiving 2007, Crawford appeared at the
10 Benchmark campus and over a period of eight days, sough to disrupt and
11 destroy Benchmark’s ongoing school operations in a variety of ways, including
12 encouraging students to terminate their participation at Benchmark (even offering
13 to pay them to do so), stalking a Benchmark staff member (causing her to call
14 911); videotaping Benchmark students and staff members and photographing
15 their car license plates and trespassing upon Benchmark property; and
16 ,- 11 (c) alleges that Crawford is posting defamatory statements on Internet sites
17 that are targeted to be presented to individuals searching for information on
18 Benchmark including that Benchmark engages in “systematic discrediting,”
19 “character assassination” and “mind experimentation” on its students and that
20 Benchmark ignored instances of abuse or mistreatment by staff against students
21 and “regularly abuses” the trust placed in it by parents. That Benchmark
22 “creates” problems in students in order to financially exploit parents and schemes
23 to promote the failure of students who leave Benchmarks and “brainwashes”
24 potential participants and only permits certain students to succeed. Finally, that
25 Benchmark engages in the unauthorized practice of experimental psychology
26 and engages in “psychological abuse” and “physical abuse” of its students.
27 The 1st Cause of Action (Intentional Interference with Economic Relations)
28 incorporates the foregoing factual allegations and alleges that they were done
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1 with the intent to disrupt the economic relations between plaintiff and potential
2 customers (,- 13) and have done so by causing potential customers not to use
3 Benchmark (,- 14) to cause losses of more than $100,000 m 15). Punitive damages are
4 also sought. (,- 16.)
5 The 2nd Cause of Action (Libel per se) alleges that beginning in or about 2006
6 (bold added), “Defendants have published on various websites; the statements set forth
7 above and similar statements.” (,- 24.) The claim further alleges that persons in and
8 around Redlands have read the statements and plaintiffs have been damaged in excess
9 of $1 million. m,- 21, 22.) Very noteworthy is ,- 23 which alleges that the injury to
10 plaintiff’s business from the libel is in excess of $100,000 (mirroring the 1 st Cause of
11 Action). There is no distinction with the 3rd Cause of Action other than it is for libel
12 rather than libel per se.
13 The 4th Cause of Action (Invasion of Privacy) alleges in ,- 33 that beginning in
14 2006 defendants, without plaintiffs’ consent, “have invaded Plaintiffs’ right to privacy by
15 publishing statements in which Defendants falsely portrayed Plaintiff’s (sic) conduct with
16 regard to BENCHMARK and BENCHMARK’s actions in dealing with BENCHMARK
17 students, all as set forth above.”
18 “The disclosure by Defendants created publicity in the sense of a public
19 disclosure to a large number of people in that Defendants have posted the disclosure on
20 the Internet and intentionally sought to obtain the widest possible audience by directing
21 individuals searching for BENCHMARK to websites containing the posted materiaL.” (,-
22 34.) “The publicity created by Defendants placed Plaintiffs in a false light in the public
23 eye …” (,- 35.)
24 The 5th Cause of Action seeks injunctive relief directed to enjoin defendants from
25 any further Internet activity. There is no discussion of the first two types of conduct
26 discussed in ,- 11, i.e. the communications with educational consultants (which evidence
27 reveals to be via email), or the Thanksgiving 2007 incident. Rather the specific request
28 asks the court to enjoin defendants:
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1 “from (1) posting on any website, weblog, message board, and/or any other
2 Internet site any defamatory comments regarding Plaintiffs; (2) creating,
3 developing, maintaining, or otherwise participating in the existence of any
.4 website, weblog, message board and/or any other Internet site or medium that is
5 deigned, either in whole or part for the purpose of disseminating false information
6 regarding Plaintiffs.” (,- 41.)
7 B. Response to Complaint (“anti-SLAPP motion”):
8 In response to the litigation defendant Crawford filed a timely Special Motion to
9 Strike (“anti-SLAPP motion”). The 82 documents filed in support of the motion are
1 0 extensive, filling two volumes. In opposition to the motion, plaintiff filed 18 declarations.
11 Although voluminous, the key evidence is relatively limited.
12 Exhibit 78 consists of pages from Crawford’s website. Exhibit 79 is the
13 December 12, 2006 email from Crawford to the plaintiffs regarding the publication of his
14 website and “inviting” corrections or discussion of its content. The email indicates that
15 at least as of that date (December 12, 2006) the website was published.
16 In addition to his website (Exhibit 78), Crawford provides his own declaration to
17 set forth his complaints with his treatment while at Benchmark. These parallel the
18 statements found on the website and provide insight into 1) why Crawford was so
19 dissatisfied with his time at Benchmark, and 2) why Benchmark argues Crawford’s
20 website constitutes libel that must be stopped before further damage (i.e. lost
21 enrollments) can occur.
22 Crawford declares he was placed at Benchmark by his parents in September
23 2001 and remained there until his parents removed him in approximately June 2002.
24 During his stay Crawford was subjected to therapeutic practices that he felt were
25 abusive, humiliating and dangerous, and he spoke with others about their experiences
26 and views of Benchmark as welL.
27 One of the abusive practices was the “Friendship Workshop” which was a
28 confrontational form of group therapy which Crawford describes in detail in ,- 5 of his
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1 declaration:
2 The room is prepared by covering all windows and taping all doorjambs so no
3 light from outside can enter. Watches and personal effects are confiscated so
4 the participants do not know the time other than the fact the session began in the
5 afternoon. Crawford “could only estimate” how long the session lasted and
6 believed it was at least 24 hours and possibly as long as 36 hours. (Benchmark
7 staff provided declarations indicating the time frame ran between 12-15 hours.)
8 During almost the entirety of this period the students were not allowed to sleep or
9 eat until the end of the session when they were fed and allowed to take a
10 “communal nap.”
11 Near the beginning of the workshop the students, dressed in costumes, were
12 required to perform a skit written for them by the staff designed to highlight what
13 the staff believed to be their unresolved issues. Crawford found this public
14 ridicule embarrassing and humiliating and of no benefit and others told him they
15 felt the same way.
16 After the skit, came the disclosure circle during which the participants were
17 required to disclose intimate and shameful things they had never revealed before
18 while the staff played Kenny Roger’s “Tell it all Brother” over and over.
19 Next the students were told to curl up in the fetal position on the floor and be
20 “rocks” – i.e. blocking out their feelings. As the Simon and Garfunkle song “i am
21 a Rock” played over and over, the group facilitator went around the room
22 shouting out intimate details and events at each person that the facilitator
23 believed caused the person to become emotionally isolated (i.e. like a rock). By
24 this time many students were crying.
25 Next, the students were told to lay on the floor with arms outstretched and eyes
26 closed (as opposed to the “closed” fetal position) and the facilitator would go
27 around to each person and comfort them, creating an artificial bond between the
28 facilitator and student through the intentional “breaking down/raising up” process
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1 during the marathon session.
2 Crawford considers his experience at Benchmark to have been abusive and
3 harmful due to many of its practices. He was cut off from all contact with his family for
4 the first 30 days, and prevented from using his personal computer even though he (and
5 his parents) had been assured he would be allowed access to a computer due to a
6 writing disability he suffered. He was “verbally abused” by Benchmark staff, had his
7 mail read and privacy invaded, and was placed on a starvation diet (2 Cup-o-Noodle
8 soups and 1 granola bar per day) for being “hostile.” At one point he was kicked out on
9 the streets and told not to come back for two days. (As his parents had been told not to
10 take him in he had no where to turn.) Crawford also claims to have witnessed or
11 learned of suicide attempts and that after he left Benchmark he states learned that a
12 student did commit suicide after a particularly abusive dressing down by a Benchmark
13 employee.
14 After leaving Benchmark, Crawford claims he began investigating the school and
15 the “troubled youth” industry which is the subject of considerable public debate and
16 discussion. (Crawford provides extensive documents revealing the concerns with the
17 industry. The “tough love” approach and lack of licensing and oversight has been
18 severely criticized. More critically, the injuries and deaths at some facilities have led to
19 numerous bills pending in Congress to address these concerns.) Crawford decided to
20 join the debate and created his own website setting forth his conclusions from his
21 research and experiences at Benchmark. Although his website has the additional and
22 admitted purpose of seeking to shut down Benchmark, he also expresses a hope that
23 parents will at least “keep an open mind” about whether they truly wish to send their
24 child to Benchmark or a similar program.
25 After creating his website, Crawford sent an email to Longnecker at Benchmark
26 on December 12, 2006, inviting her to review the website and advise him if it contained
27 any inaccuracies stating: “I’d rather avoid the lawyers if at all possible. i am making an
28 effort to be as accurate as possible and if for some reason i made a mistake i (sic)
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would rather have you correct me…” (Exh. 79.) Longnecker apparently did not respond
to the emaiL.
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12 A. Special Motion to Strike
13 “A cause of action against a person arising from any act of that person in
14 furtherance of the person’s right of petition or free speech under the United States or
15 California Constitution in connection with a public issue shall be subject to a special
16 motion to strike, unless the court determines that the plaintiff has established that there
17 is a probability that the plaintiff will prevail on the claim. (Code Civ. Proc., § 425.16
18 subd. (b)(1 ).) The express language of section 425.16, subdivision (b)(1) allows a
19 single cause of action to be stricken. The fact that other claims remain does not bar a
20 trial judge from granting a section 425.16 special motion to strike. (Shekhter v.
21 Financial Indemnity Co. (2001) 89 Cal.AppAth 141, 150.)
22 The trial court must engage in a two-step process when determining whether a
23 defendant’s section 425.16 motion to strike should be granted. “First, the court decides
24 whether the defendant has made a threshold prima facie showing that defendant’s acts,
25 of which the plaintiff complains, were ones taken in furtherance of the defendant’s
26 constitutional rights of petition or free speech in connection with a public issue.” (Id.) “If
27 the court finds that such a showing has been made, then the plaintiff will be required to
28 demonstrate that ‘there is a probability that the plaintiff will prevail on the claim.” (Id. at
Subsequently, Crawford engaged in two subsequent acts set forth in the
complaint. He sent an email to a third party (e.g. an educational consultant) expressing
his concern about Benchmark, and he picketed the school over Thanksgiving 2007. As
will be explained below, however, these two subsequent actions are merely incidental to
the primary focus of this litigation. It is the Internet activity which has caused the most
significant damage to Benchmark (demonstrable loss of enrollment), it is the Internet
activity which the 5th Cause of Action seeks to shut down, and thus it is the Internet
activity which is the gravamen of this action.
ANALYSIS
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1 pp.150-151.)
2 “The anti-SLAPP statute applies only to a ’cause of action… arising from’ acts in
3 furtherance of the defendant’s constitutional right of petition or free speech in
4 connection with a public issue (citation), and it is the defendant’s burden in an anti-
5 SLAPP motion to initially show the suit is within the class of suits subject to a motion to
6 strike under section 425.16.” (Martinez v. Metabolife Int’ Inc. (2003) 113 Cal.App.4th
7 181, 186.) “(T)he statutory phrase ’cause of action … arising from’ means simply that
8 the defendant’s act underlying the plaintiff’s cause of action must itself have been an act
9 in furtherance of the right of petition or free speech.” (Ibid. (emphasis in original).)
10 B. “Principal Thrust or Gravamen” of the Complaint is the Internet Activity
11 “(A) plaintiff cannot frustrate the purposes of the SLAPP statute through a
12 pleading tactic of combining allegations of protected and nonprotected activity under the
13 label of one ’cause of action.1I (Fox Searchlight Pictures v. Paladino (2001) 89
14 Cal.App.4th 294, 308. “(I)t is the principal thrust or gravamen of the plaintiffs cause of
15 action that determines whether the anti-SLAPP statute applies (Citation), and when the
16 allegations referring to arguably protected activity are only incidental to a cause of
17 action based essentially on nonprotected activity, collateral allusions to protected
18 activity should not subject the cause of action to the anti-SLAPP statute.” (Martinez v.
19 Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181,188.) The converse is also true.
20 Hence, the existence of some non-SLAPP claims will not defeat an anti-SLAPP motion
21 if the gravamen of the complaint falls within the protected activity.
22 “The favored causes of action in SLAPP suits are defamation, various business
23 torts such as interference with prospective economic advantage, nuisance and
24 intentional infliction of emotional distress.” (Gallimore v. State Farm Fire & Casualty Ins.
25 Co. (2002) 102 Cal.App.4th 1388, 1400.)
26 At this juncture, it is helpful to review the complaint to determine the “gravamen”
27 of plaintiffs’ allegations to determine the true focus of the pleading.
28 Paragraph 11 of the complaint alleges three “categories” of actions by Crawford
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1 for which plaintiffs seek damages in subdivisions (a), (b) and (c).
2 Subdivision (a) refers to “defamatory statements to third parties, including
3 education consultants upon whom BENCHMARK relies to refer student (sic) to its
4 programs.” The evidence in opposition to the anti-SLAPP motion includes a declaration
5 from Thomas J. Croke, President of Thomas J. Croke and Associates, Inc., a consulting
6 service to parents of young people with behavioral and emotional problems. (Croke
7 decl’- 2.) Croke is familiar with Benchmark and has previously recommended
8 Benchmark as a placement. (Croke decl. ,- 4.) Croke declared that on May 10,2007
9 he received an unsolicited email from Michael Crawford in which Crawford made
10 accusations against Benchmark and Longnecker, including that there were attempted
11 suicides that were covered up. (Croke decl. ,-,- 5-8.) Crawford asked Croke to contact
12 him (Crawford), but Croke did not do so and had no further communication. (Croke
13 decl.’-9.)
14 The declaration of Croke shows the limited role (if any) the email plays in the
15 context of the lawsuit. Croke does not even indicate that his decisions were influenced
16 adversely to Benchmark by Crawford’s emaiL. To the contrary, as he provided a
17 declaration in support of the plaintiffs the implication is that there were no adverse
18 consequences resulting from the May 10, 2007 emaiL. Moreover, the complaint does
19 not seek injunctive relief to prevent Crawford from further email contacts with
20 educational consultants (see e.g. 5th Cause of Action), indicating that Benchmark does
21 not perceive such communications to constitute a threat.
22 As such, there is no need for further discussion of the May 10, 2007 email to
23 Croke. It plays no significant role in the complaint and hence, no significant role in the
24 anti-SLAPP analysis. Plaintiffs have proffered no other evidence in support of
25 subdivision (a) of’- 11, indicating that this category of conduct is inconsequential to the
26 litigation.
27 Subdivision (b) of’- 11 details the eight-day Thanksgiving 2007 “protest” during
28 which Crawford visited Benchmark’s premises and interfered with its operations.
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1 Declarations filed in opposition to the motion indicate that Crawford attempted to lure
2 away students by promising plane tickets home, money, cigarettes, and generally
3 interfered with the school’s normal operations. Although Crawford was never arrested,
4 he did make himself troublesome and the police were called on more than one
5 occasion.
6 But as with the Croke email, there is no indication of any lasting harm from
7 Crawford’s Thanksgiving visit. There are no allegations that any students dropped out
8 of the program as a direct result of his conduct. At best Crawford did cause some tense
9 moments when he caused one student, to go missing briefly
10 over the weekend. was on probation at the time (for breaking into the
11 Benchmark Educational Center) and not permitted to change residences without
12 permission from his San Bernardino County Probation Officer. There was concern
13 when Crawford called and demanded passport (it appears may have
14 been a Mexican national) on Saturday or Sunday. However, returned to the
15 school on Monday and there were no consequences (although mother in
16 Mexico went through a night of upsetting calls from Crawford). (See declarations of Ed
17 Pinedo (staff member at Benchmark familiar with situation);
18 E (mother of S Longnecker, ,-,- 53-54.) Additionally,
19 one set of parents indicated annoyance at Crawford’s interference at the campus (see
20 declarations of but they did not pull their son out as
21 a result of Crawford’s conduct. Crawford also tailed a female Benchmark staff member
22 driving a Benchmark vehicle, causing her to call 911 and resulting in a police response,
23 complete with a helicopter. But again, there was no arrest although the staff member
24 was understandably upset. (See declaration of Deborah Smith.)
25 At best the Thanksgiving 2007 incident caused some disruption to the staff
26 resulting in consumption of Benchmark’s resources during the eight days Crawford was
27 present and protesting. Such damages are miniscule in comparison to the seven figure
28 damages sought in connection with the defamation claims. It is apparent that as with
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1 the email to Croke, the 2007 Thanksgiving incident also plays no significant role in the
2 complaint and correspondingly, no significant role in the anti-SLAPP analysis.
3 Subdivision (c) refers to Crawford’s conduct of “posting defamatory statements
4 on Internet sites that are targeted to be presented to individuals searching on the
5 Internet for information on BENCHMARK. …” Looking at the remainder of the
6 allegations, and the relief sought in the 5th Cause of Action – seeking to enjoin future
7 postings – it is apparent the gravamen of this lawsuit is designed to close Crawford’s
8 website and to prevent him from posting further “false” comments about the plaintiffs.
9 The damages listed by plaintiffs, and supported by the declarations in opposition to the
10 motion, are based on declining enrollment. The declarations further explain that the
11 declining enrollment is a direct result of Crawford’s website and the parents/consultants
12 cite the website as the basis for the decisions to pass over Benchmark.
13 It is clear to the court, from the allegations of the complaint, the exhibits and
14 declarations submitted by the parties, and the arguments presented, the gravamen of
15 the complaint concerns the Internet activity of Crawford and thus the primary focus for
16 purposes of the current anti-SLAPP motion is directed towards that activity and the
17 alleged libel on the website.
18 C. 1st Prong – Public Forum and Matter of Public Concern
19 Moving to the traditional standard on the anti-SLAPP motion, the first step is for
20 this court to determine if Crawford has made a threshold prima facie showing that his
21 acts, of which the plaintiff complains, were ones taken in furtherance of his
22 constitutional rights of petition or free speech in connection with a public issue.
23 (Shekhter, supra, 89 Cal.AppAth at p. 150.)
24 1. Crawford’s Web Site is a Public Forum
25 The California Supreme Court held that Web sites accessible to the public are
26 “public forums” for the purposes of the anti-SLAPP statute. (Barrett v. Rosenthal (2006)
27 40 Cal.4th 33, 41, fn. 4.) “‘Cases construing the term “public forum” as used in section
28 425.16 have noted that the term “is traditionally defined as a place that is open to the
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1 public where information is freely exchanged.” (Citation.) “Under its plain meaning, a
2 public forum is not limited to a physical setting, but also includes other forms of public
3 communication.”’ (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.AppAth 993, 1006.)
4 Statements on Crawford’s site were intended to reach parents and former,
5 current and prospective students of Benchmark to warn them of Crawford’s unpleasant
6 experiences. According to the declaration of Longnecker, the website was successful in
7 its goal of showing up whenever a parent or consultant ran a search on Benchmark.
8 His website was accessible to anyone who chose to visit the site, and thus could ‘hardly
9 be more public.’ (Wilbanks v. Wolk (2004) 121 Cal.AppAth 883, 895; see
10 ComputerXpress, supra, 93 Cal.AppAth at p. 1007.) This court is satisfied that
11 Crawford’s Web site constitutes a public forum.
12 2. Matter of Public Concern
13 In response to case law, the Legislature directed that section 425.16 “be
14 construed broadly.” (see Code Civ. Proc., § 425.16, subd. (a) as amended by Stats.
15 1997, ch. 271, § 1.) Thus “(whenever possible, (the courts) should interpret the First
16 Amendment and section 425.16 in a manner ‘favorable to the exercise of freedom of
17 speech, not to its curtailment).)” (Briggs v. Eden Council for Hope & Opportunity,
18 supra, 19 Cal.4th at p. 1119, fn. omitted.)
19 Here, the issue is the website created by Crawford to disseminate his information
20 about Benchmark. Obviously, the information is not favorable to Benchmark, which has
21 put forth sufficient evidence of the negative impact of the results – including a
22 substantial drop in enrollment, some of which appears to be directly attributable to the
23 website.
24 Benchmark focuses most of its argument (and evidence) on the conduct of
25 Crawford alleged in subdivision (b) of paragraph 11 of the complaint, i.e. the
26 Thanksgiving “protest.” However, as noted previously, that conduct is not the core of
27 the complaint – the Internet website is the focus of the injunctive relief and the basis of
28 the real damage claim. Benchmark did not file this lawsuit to quell future “protests” at its
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1 campus, such relief is not even sought in the 5th Cause of Action. Rather, Benchmark
2 seeks to stop Crawford from exercising his 1 st Amendment rights on the Internet.
3 The only argument made by Benchmark to argue that Crawford’s discussion of
4 “schools” like Benchmark is not a matter of public concern is that there was no showing
5 that the discussions were made in connection with pending legislation. Benchmark’s
6 cited case of People ex rei 20th Century Inc. Co. v. Building Permits Consultants, Inc.
7 (2000) 86 Cal.App.4th 280 is distinguishable due to its unique fact pattern.
8 In 20th Century, an insurance company’s lawsuit alleged a defendant prepared
9 and used false and fraudulent damage reports and repair estimates for clients
10 submitting claims to the insurer for earthquake damage. The defendant moved to strike
11 the suit and submitted a declaration in support of the motion stating the reports were
12 prepared for submission to clients and their legal counsel, the majority were prepared in
13 anticipation of litigation, and frequently were sought by discovery in pending lawsuits.
14 The court concluded the defendant failed to make a prima facie showing the lawsuit was
15 brought to chill First Amendment rights, even though “some of the reports eventually
16 were used in official proceedings or litigation,” because they were not created in
17 connection with an issue then under consideration or review in an official proceeding.
18 (86 Cal.App.4th at pp. 284-285.) The court explained: “(T)he damage reports were sent
19 to 20th Century Insurance to demand performance on the insurance contract. At the
20 time defendants created and submitted their reports and claims, there was no ‘issue
21 under consideration’ pending before any official proceeding. If we protect the reports
22 and claims under section 425.16 because they eventually could be used in connection
23 with an official proceeding, we would effectively be providing immunity for any kind of
24 criminal fraud so long as the defrauding party was willing to take its cause to court.
25 Defendants have cited nothing to us that demonstrates the anti-SLAPP law embraces
26 such actions.” (Id. at p. 285.) 20th Century does not help plaintiffs.
27 Here, there is little doubt that schools (facilities, treatment centers, residential
28 centers, etc.) where parents place their troubled children are a matter of public concern.
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1 Plaintiffs cannot make a serious argument against this proposition for to do so would
2 negate the reason for their very existence. Indeed, Benchmark and “schools” like it are
3 in existence because the public has found a need to find programs willing provide
4 educational/emotional/social and other services to children, including those of legal
5 majority, outside of the home. And the parties do not dispute the fact that the oversight
6 of such facilities and protection of vulnerable youth is also a matter of public concern,
7 prompting Legislative discussion, if not pending bills.
8 Interpreting the First Amendment and section 425.16 in a manner ‘favorable to
9 the exercise of freedom of speech, not to its curtailment’ (Briggs v. Eden Council for
10 Hope & Opportunity, supra, 19 Cal.4th at p. 1119, fn. omitted), the discussion of
11 Benchmark’s program by a former student on a website, with warnings to prospective
12 parents and students researching it and other locations, falls within the realm of public
13 concern.
14 D. 2nd Prong – Reasonable Probability of Prevailing on the Claim
15 As Crawford has met the first prong under the anti-SLAPP motion – the burden
16 shifts to the plaintiffs to establish a reasonable probability of prevailing on the claim.
17 (Shekhterv. Financial Indemnity Co., supra, 89 Cal.App.4th at pp. 150-151.)
18 1. Supplemental Briefing re: Statute of Limitations Argument (Website
19 Publication)
20 In a supplemental reply filed on July 24, 2008 (one day after his original reply),
21 Crawford pointed out that the allegedly defamatory statements first identified by
22 plaintiffs in their opposition to the anti-SLAPP motion were not only barred by the rule
23 against amending a complaint to avoid an anti-SLAPP motion, but also by the one-year
24 statute of limitations as set forth in Code of Civil Procedure, section 340 subdivision (c)
25 and Traditional Cat Assn., Inc. v. Gilbreath (2004) 118 Cal.App.4th 392. Crawford
26 contended that under Traditional Cat the “single-publication rule” applied to Internet
27 postings and dated back to the first publication.
28 Crawford had raised the statute of limitations as an affirmative defense in his
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1 answer and the documents in support of the motion to strike, specifically Exhibit 79 (the
2 email to plaintiffs advising of the website’s publication) revealed that the website had
3 been published no later than December 12, 2006, more than one year prior to the
4 March 26, 2008 filing date of the Complaint.
5 As the matter had not been briefed by the parties initially, but could impact
6 plaintiffs’ ability to show a probability of prevailing on their claims (the second prong of
7 the court’s analysis of this anti-SLAPP motion) (see Shekhter v. Financial Indemnity Co.
8 (2001) 89 Cal.AppAth 141,150-151), further briefing was requested and the matter
9 continued to allow compliance with the court’s request.
10 a. Waiver of 30-Day Rule of Code of Civil Procedure, section
11 425.16, subdivision (f)
12 The court’s continuance of the hearing date on the anti-SLAPP motion was not
13 done lightly. Code of Civil Procedure, section 425.16 subdivision (f) sets forth a
14 requirement that such motions be set for hearing within 30 days from the date they are
15 filed. However, the procedural posture of the instant case was unique in that the parties
16 had already sought and obtained a continuance of the hearing (for good cause shown)
17 and expressly stipulated to “waive any objection they may have with respect to the
18 hearing on this motion occurring outside of the 30-day period following service of the
19 motion to strike.” (Stipulation filed June 27, 2008.)
20 Neither party objected to the brief second continuance requested by the court to
21 ensure the legal issue was fully and fairly addressed by the parties. The court views
22 this silence as a continued waiver of the 30-day rule. (See e.g. San Ramon Valley Fire
23 Protection Dist. V. Contra Costa County Employees’ Retirement Assn. (2004) 125
24 Cal.AppAth 343, 351 (the party attempting to rely upon the 30-day rule of section
25 425.16(f) had, in fact, waived the claim by not raising it in the trial court).) When “the
26 court has jurisdiction of the subject, a party who seeks or consents to action beyond the
27 court’s power as defined by statute or decisional rule may be estopped to complain of
28 the ensuing action in excess of jurisdiction. (Citations.)” (In re Griffin (1967) 67 Cal.2d
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1 343, 347.)
2 Plaintiffs did object to what they considered to be a new argument asserted
3 outside the scope of the initial time-frame for the anti-SLAPP motion, i.e. the statute of
4 limitations argument. However, the issue of the statute of limitations was not only for
5 the defendant to assert, but rather, it also fell upon plaintiffs. In other words, plaintiffs
6 bore the burden of showing their defamation claims were timely. Traditional Cat has
7 explained as follows:
8 In determining whether a plaintiff has demonstrated the requisite probability of
9 prevailing, section 425.16, subdivision (b)(2), requires that the court “consider the
10 pleadings, and supporting and opposing affidavits stating the facts upon which
11 the liability or defense is based.” (Italics added.) Thus on its face the statute
12 contemplates consideration of the substantive merits of the plaintiffs complaint,
13 as well as all available defenses to it, including, but not limited to constitutional
14 defenses. This broad approach is required not only by the language of the
15 statute, but by the policy reasons which gave rise to our anti-SLAPP statute. As
16 the court in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53,
17 60 (J, stated: “‘Intimidation will naturally exist anytime a community member is
18 sued by an organization for millions of dollars even if it is probable that the suit
19 will be dismissed.’ (Citation.) ‘Considering the purpose of the (anti-SLAPP)
20 provision, expressly stated, the nature or form of the action is not what is critical
21 but rather that it is against a person who has exercised certain rights.’ (Citation.)
22 ‘The Legislature recognized that “all kinds of claims could achieve the objective
23 of a SLAPP suit-to interfere with and burden the defendant’s exercise of his or
24 her rights.” ,,, Similarly, a claim which is meritless because it is barred by the
25 statute of limitations will cause just as much intimidation as a claim which is
26 barred because of a constitutional defense. Both forms of meritless lawsuits are
27 the subject of section 425.16.
28 In sum then, the statements on the Web site were an exercise of free speech
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1 which shifted to plaintiffs the burden of establishing the merits of their defamation
2 cause of action, including its timeliness. As we explain more fully below,
3 plaintiffs’ defamation cause of action is barred by the statute of limitations.
4 (Traditional Cat, supra, 118 Cal.App.4th at pp. 398-399 (bold and underline
5 added.)
6 Furthermore, although the court requested additional briefing on the legal issue
7 of the statute of limitations, there was no need to lift the automatic stay on discovery. In
8 contrast, plaintiffs themselves sought to expand the scope of the SLAPP motion by
9 asserting new factual claims by raising the allegedly libelous “suicide” statements in
10 their opposition whereas such factual claims are nowhere in the original pleading. As
11 the alleged suicide attempts provided the most compelling factual bases for the libel
12 claims on the website, plaintiffs themselves are the ones who expanded the scope of
13 the SLAPP motion beyond the initial time frame.
14 Under the circumstances of this case which include the parties’ previous
15 stipulation extending the hearing which included a written waiver of the 30-day rule; the
16 existing evidence (Exhibit 79) (indicating plaintiffs may not be able to establish the
17 timeliness of their claims) and need for legal argument to address plaintiffs’ burden on
18 this motion; the submission of supplemental briefs and oral argument, both of which
19 lacked any objection on the grounds of the 30-day rule; the court finds that the parties
20 have waived any objection under Code of Civil Procedure, section 425.16, subdivision
21 (t).
22 2. Statute of Limitations Argument (Website Publication)
23 Single-Publication Rule Applies to Defamation on Internet
24 Traditional Cat joins a host of other jurisdictions, nearly unanimous in holding tha
25 the single-publication rule applies to defamation actions arising our of Internet
26 publications. (See e.g. Oja v. U.S. Army Corp. of Engineers (9th Cir. 2006); Van Buskirk
27 v. N.Y. Times CO. (2nd Cir. 2003) 325 F.3d 87, 89-90; Lane v. Strang Communications
28 Co. (N.D. Miss. 2003) 297 F.Supp.2d 897, 899-900; Mitan v. Davis (W.D. Ky. 2003) 243
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1 F.Supp. 719, 721-724; McCandliss v. Cox Enterprises, Inc. (Ga. 2004) S.E.2d 856, 858;
2 E.B. v. Liberation Publications, Inc. (2004) 777 N.Y.S.2d 133, 134.)
3 Traditional Cat is now cited amongst the foregoing cases and others as the
4 authority for California’s stance on the single-publication rule on the Internet by other
5 authorities throughout the country. As it represents the law in this state with respect to
6 the single-publication rule and defamation on the Internet, it is helpful to look to
7 Traditional Cats holding for background on this issue.
8 Under the single-publication rule, with respect to the statute of limitations,
9 publication generally is said to occur on the ‘first general distribution of the
10 publication to the public.’ Accrual at that point is believed to provide adequate
11 protection to potential plaintiffs, especially in view of the qualification that
12 repetition of the defamatory statement in a new edition of a book or newspaper
13 constitutes a new publication of the defamation that may give rise to a new cause
14 of action, with a new accrual date. Under this rule, the cause of action accrues
15 and the period of limitations commences, regardless of when the plaintiff secured
16 a copy or became aware of the publication.
17 The single-publication rule largely has been codified in the Uniform Single
18 Publication Act, which has been adopted in many states, including California.
19 The Uniform Single Publication Act was intended to reflect the common law
20 single-publication rule.
21 (Traditional Cat, supra, 118 Cal.App.4th at p. 401 (all citations omitted).)
22 The Traditional Cat court then discussed the seminal case on Internet
23 defamation and the single-publication rule, Firth v. State (2002) 747 N.Y.S.2d 69, and
24 its reasoning supporting an extension of the rule before concluding:
25 We find the reasoning of the court in Firth v. State persuasive. As the court in
26 Firth v. State noted, the need to protect Web publishers from almost perpetual
27 liability for statements they make available to the hundreds of millions of people
28 who have access to the Internet is greater even than the need to protect the
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1 publishers of conventional hard copy newspapers, magazines and books.
2 Importantly, the interests in free expression, which the court in Firth v. State
3 found were worthy of protection by application of the single-publication rule to
4 Web pages, are the very same interests which the court in Shively v. Bozanich
5 relied upon in rejecting the notion the single-publication rule should be subject to
6 any discovery exception. Given the protection the court gave those interests in
7 Shively v. Bozanich, we have very little doubt that, like the court in Firth v. State,
8 our Supreme Court would find that those interests require application of the
9 single-publication rule to Web page publication.
10 (Traditional Cat, supra, 118 Cal.AppAth at p. 404.)
11 Moving to the key facts of the case, the Traditional Cat court noted:
12 As we noted, accord ing to Herold the Web site was not altered after May 21,
13 2001. In opposing the motion to strike, plaintiffs did not offer any evidence which
14 contradicted Herold’s declaration or provide admissible evidence that the
15 statements on the Web site had been republished in other formats in the year
16 preceding the filing of their complaint. ..,
17 Thus for purposes of determining the motion to strike, plaintiffs’ cause of action
18 for defamation arose no later than May 21,2001, and had expired on May 22,
19 2002, when plaintiffs filed their complaint. (See Firth v. State, supra, 747
20 N.Y.S.2d at pp. 71-72.) Because the defamation claim was barred as a matter of
21 law, it should have been stricken.
22 (Traditional Cat, supra, 118 Cal.AppAth at pp. 404-405.)
23 Here, Crawford has similarly provided declarations indicating that he did not
24 change his website within the year preceding the filing of the complaint. As such, the
25 present case falls squarely within the holding of Traditional Cat and is subject to the one
26 year limitations period on the defamation claims. This court is bound by the
27 unambiguous holding of Traditional Cat.
28 2. There has been NO Republication
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1 In the request for supplemental briefing the court asked the parties to address
2 not only Traditional Cat, but also Wilbanks v. Wolk (2004) 121 Cal.App.4th 883. In
3 Wilbanks, the appellate court addressed and rejected the (then recently decided)
4 Traditional Cat argument raised for the first time on appeal:
5 It is undisputed that Wolk has altered her statements from time to time. Plaintiffs
6 claim that the evidence therefore allows the inference that Wolk effectively
7 published a “new edition” of her Web site within one year of their complaint such
8 that their action accrued within the applicable one-year limitations period.
9 For us to hold that the single-publication rule bars plaintiffs’ claims, we would
10 have to adopt the reasoning in Traditional Cat Assn., Inc. v. Gilbreath, supra, 118
11 Cal.App.4th 392, which applies settled law to a new and not perfectly analogous
12 setting, and may not reflect the final statement of the law on the issue. We also
13 would have to conclude that plaintiffs’ evidence does not support a finding that
14 Wolk altered her words during the year before the complaint was filed or, at least,
15 that her alterations did not rise to the level of a “new edition.” Finally, we would
16 have to conclude that plaintiffs should not be permitted to go forward because
17 they failed to make a factual showing sufficient to disprove a defense that was
18 not raised by Wolk until late in the appellate process. We decline to do so,
19 choosing instead to apply the appellate rule that, ordinarily, a defendant’s failure
20 to plead and prove a defense in the trial court precludes the defendant from
21 raising the defense in the appellate court. (Citation.) Our ruling here should not
22 be viewed as preventing Wolk from raising the single-publication rule as a
23 defense below, where the parties will have the ability to address the defense
24 fully, and produce such evidence as they have in support or opposition to it.
25 (Wilbanks, supra, 121 Cal.App.4th at p. 907.)
26 Republication via Website “Changes”
27 Relying on Wilbanks and the concept of republication, plaintiffs attempted to
28 establish changes to the website via a purported “expert” declaration (Tom Rubendall),
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1 the IT Manager from plaintiff’s counsel’s law firm who ran the “WayBack Machine” on
2 Crawford’s website to see if changes had been made. However, Rubendall was only
3 able to state that the website “has changed content between June 22, 2007 and August
4 24, 2007″ without more. (Rubendall decl. ,- 3.) The printouts attached to Rubendall’s
5 declaration did not reveal any substantive change in the statements at issue.2
6 More persuasive was the evidence submitted by the defendant. Crawford
7 provided supplemental declarations indicating that there were no substantive changes
8 to his website since posting it in December 2006 (apart from a minor grammatical
9 correction in January 2007).
10 Crawford’s third supplemental declaration explained that the website “change”
11 noted in the Rubendall declaration refers to a one-line technical modification in source
12 code of the index.html file of his homepage Crawford added to his website on August
13 10,2008 when he signed up for “Claim ID.” Crawford explained this membership had
14 no impact on the material or its distribution and provided date-stamped copies of the
15 emails from Claim ID confirming his registration for the service on that date.
16 Crawford’s declarations bring him within the holding of Traditional Cat. Plaintiffs’
17 evidence (e.g. Rubendall declaration) does not demonstrate a republication of the
18 website.
19 Republication via “Linking” to Website
20 Plaintiffs also argue that Crawford’s activity on the Internet and posting of links to
21 his website (evidence to which extensive evidentiary objections have been lodged)
22 constitutes republication. As noted by Crawford, when addressing this issue at least
23 one federal counterpart has held posting a link to a website does not constitute a
24 “republication” (in the context of a summary judgment motion):
25 Plaintiffs appear to argue that the statements were republished when IJM’s
26 website provided links to the statements in March 2005. … Plaintiff cites no
27 authority holding that providing links to statements already published on the Web,
28
2 Rubendall failed to lay an adequate foundation to establish his qualifications as an expert, stating only
that he has “been in the IT industry for over 15 year2~nd have worked on many Websites in that time.”
(Rubendall dec!., ,r 2.) – -
1 without more, republishes those statements. Rather, the court finds that such
2 linking is more reasonably akin to the publication of additional copies of the same
3 edition of a book, which is a situation that does not trigger the republication rule.
4 See Shively (v. Bozanich (2003)) 31 Cal.4th at 1245.
5 (Sundance Image Tech., Inc. v. Cohen Editions Press, Ltd. (S.D.Cal. 2007) 2007
6 U.S. Dist. LEXIS 16356.)
7 The law is unclear on the treatment of “links” and publication. Little guidance is
8 provided for trial courts. The holding in Sundance carries with it a logic applicable here.
9 Providing a link to a website without more is similar to providing the address of a
10 bookstore where one’s book may be purchased.
11 Apart from the fact the law with respect to the treatment of “linking” and whether
12 such conduct constitutes republication is far from settled, in the present case plaintiffs’
13 evidence is not admissible on this point.
14 Crawford’s Other Alleged Libelous Statements on the Internet
15 Finally, to the extent plaintiff seek to use other publications made by Crawford at
16 other locations on the Internet, as with the “links” there is no admissible evidence.
17 Furthermore, none of the new “libelous” statements are listed within ,- 11 c. These new
18 allegations may potentially form the basis for new and distinct claims for libel; however
19 currently they are beyond the scope of the pleadings and cannot serve to revive or
20 republish untimely libel claims.
21 3. Plaintiffs may not Change claims from Libel to Trade Libel
22 In the supplemental briefing and at the hearing on the motion to strike, plaintiffs’
23 counsel vigorously argued that the court should treat the complaint as one alleging
24 trade libel rather than libel and that Code of Civil Procedure, section 339 applies (with a
25 two-year limitations period).
26 At the hearing plaintiffs similarly emphasized their position that the gravamen of
27 the complaint was one of trade libeL. However, as the court pointed out during the
28 hearing, that is not what the complaint alleges. There is no claim for trade libeL. The
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1 complaint, as drafted, is one for libel and libel per se, e.g., basic defamation.
2 Although it is true “(d)efamation and trade libel both require the intentional
3 publication of a false and unprivileged statement of fact” (Mann v. Quality Old Time
4 Service, Inc. (2004) 120 Cal.AppAth 90,104), even so, courts have recognized
5 defamation and trade libel as two distinct torts. (See Barnes-Hind, Inc. v. Superior
6 Court (1986) 181 Cal.App.3d 377, 381; Polygram Records, Inc. v. Superior Court (1985)
7 170 Cal.App.3d 543, 548-550; Guess, Inc. v. Superior Court (1986) 176 Cal.App.3d
8 473,479.)
9 With trade libel, the focus is on statements concerning the plaintiffs property or
10 business. This is in contrast to “common law defamation,” which “relates to the
11 standing and reputation of the businessman as distinct from the quality of his or her
12 goods.” (Barnes-Hind, supra, 181 Cal.App.3d at p. 381.)
13 In Polygram Records, a case decided in 1985, the court described trade libel as
14 “a confusing concept that has not been subjected to rigorous judicial analysis in
15 California.” (170 Cal.App.3d at p. 548, fn. omitted.) In the court’s view, this “confusion
16 arises primarily from uncertainty whether ‘trade libel’ should be treated as a species of
17 defamation,… or instead constitutes the distinct tort of injurious falsehood….” (Ibid.)
18 After analyzing the question, the court held that “the two torts are distinct; that is, ‘trade
19 libel’ is not true libel and is not actionable as defamation.” (Id. at p. 549.) Other
20 California courts have reached the same conclusion. (See, e.g., Guess, supra, 176
21 Cal.App.3d at p. 479.)
22 The key element distinguishing defamation and trade libel is whether the
23 challenged expressions “defamed the reputation of (the plaintiff or merely disparaged
24 products it owns or markets.” (Melaleuca, Inc. v. Clark (1998) 66 Cal.AppAth 1344,
25 1360.) The distinction is critical, it has been said, since “only statements which directly
26 damage a plaintiffs reputation will give rise to liability without a showing of actual
27 malice.” (Ibid.)
28 The distinctions between trade libel and defamation also give rise to differing
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1 requirements concerning damages. “Unlike personal defamation, the plaintiff seeking
2 damages for trade libel must prove special damages in the form of pecuniary loss….”
3 (Guess, supra, 176 Cal.App.3d at p. 479.) Moreover, California “requires a plaintiff to
4 allege special damages specifically, by identifying customers or transactions lost as a
5 result of disparagement, in order to state a prima facie case.” (Isuzu Motors Ltd. v.
6 Consumers Union of U.S., Inc. (C.D.Cal. 1998) 12 F.Supp.2d 1035, 1043.) The plaintiff
7 in a trade libel case “may not rely on a general decline in business arising from the
8 falsehood, and must instead identify particular customers and transactions of which it
9 was deprived as a result of the libeL.” (Mann, supra, 120 Cal.AppAth at p. 109.)
10 Despite plaintiffs urgent arguments to the contrary, the complaint as drafted is
11 not one for trade libeL. The clearly labeled claims are for Libel Per Se (2nd Cause of
12 Action) and Libel (3rd Cause of Action), not for “trade libeL.” In reading both libel claims,
13 neither seeks damages for specific lost customers or transactions as required to state a
14 prima facie case. Although the complaint lists unspecified “special” damages of
15 $100,000 in both causes of action (,-,- 23,30) there is no further identification.
16 Furthermore, in connection with the anti-SLAPP motion plaintiffs failed to provide a
17 single declaration from a parent indicating that they expressly refused to place their
18 child in Benchmark as a result of the website. (Plaintiffs’ evidence is not admissible on
19 this issue – defendant has properly objected to the hearsay in the declarations of
20 Longnecker, ,-,- 49-51; Nancy Cadwallader, Educational Planner; Susan Trueblood,
21 Educational Consultant).) Consequently, plaintiffs have failed to provide any evidence
22 identifying customers or transactions lost as direct result of Crawford’s website and/or
23 Internet activity and could not meet their prima facie case of establishing a trade libel
24 case in any event.
25 However, the more critical problem with plaintiffs’ argument is that the complaint
26 does not lend itself to the interpretation urged by them. When read as a whole, the
27 complaint alleges an injury to the reputation of the school rather than a disparagement
28 of its services. The failure to properly plead trade libel, the failure to include evidence to
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1 show the concrete damages required for a trade damage claim, and the inclusion of
2 claims such as the 4th Cause of Action (Invasion of Privacy – False Light in Public Eye)
3 all support the conclusion that the complaint filed on March 26, 2008 was intended as a
4 complaint for straightforward Libel and Libel Per Se, and was not a mislabeled trade
5 libel case.
6 4. Amendment of Complaint is not proper
7 By arguing for trade libel, plaintiffs seek to redraft their complaint to avoid the
8 effect of the anti-SLAPP motion. This is improper. When a cause of action is dismissed
9 pursuant to Code of Civil Procedure, section 425.16, the plaintiff has no right to amend
10 the claim. (Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073.) “Allowing
11 a SLAPP plaintiff leave to amend the complaint once the court finds the prima facie
12 showing has been met would completely undermine the statute by providing the pleader
13 a ready escape from section 425.16′s quick dismissal remedy. Instead of having to
14 show a probability of success on the merits, the SLAPP plaintiff would be able to go
15 back to the drawing board with a second opportunity to disguise the vexatious nature of
16 the suit through more artul pleading. This would trigger a second round of pleadings, a
17 fresh motion to strike, and inevitably another request for leave to amend.” (Ibid.)
18 The pleaded claims are for libel per se, libel, invasion of privacy based on false
19 light (which is essentially a duplication of the libel claim, see Eisenberg v. Alemeda
20 Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1385, fn. 5 (When a false light claim is
21 coupled with a defamation claim, the false light claim is essentially superfluous, and
22 stands or falls on whether it meets the same requirements as the defamation cause of
23 action. (Kapellas v. Kofman (1969) 1 Cal.3d 20,35, fn. 16 (); Selleck v. Globe
24 International, Inc. (1985) 166 Cal.App.3d 1123, 1136 ( J) and intentional interference
25 with economic relations. With respect to the latter, the case of Long v. Walt Disney Co.
26 (2004) 116 Cal.App.4th 868, 873, addresses the situation and clearly resolves the
27 matter in favor of defendant and application of the single-publication rule:
28 “Where the complaint is based on an offensive statement that is defamatory,
-26-
1 plaintiffs have not been allowed to circumvent the statutory limitation by
2 proceeding on a theory other than defamation.” (Fellows v. National Enquirer,
3 Inc. (1986) 42 Cal.3d 234, 240.) California courts have held that the USPA’s
4 phrase “any tort” means exactly that. “The enactment of section 3425.3 of the
5 Uniform Single Publication Act by the California Legislature reflected great
6 deference to the First Amendment and sought to alleviate many problems
7 presented in respect to tort actions where mass communications are involved.
8 When the Legislature inserted the clause ‘or any other tort’ it is presumed to have
9 meant exactly what it said.” (Strick, supra, 143 Cal.App.3d at p. 924 (applying
10 USPA to determine when the statute of limitations accrues for causes of action
11 for libel, fraud, and deceit based on the publication of a magazine article); see
12 also McGuiness v. Motor Trend Magazine (1982) 129 Cal.App.3d 59, 63
13 (McGuiness) (applying act to cause of action for negligence); Baugh v. CBS, Inc.
14 (N.D.Cal. 1993) 828 F.Supp. 745, 756 (Baugh) (applying act to claims for
15 seclusion, trespass, unfair competition, fraud, and intentional and negligent
16 infliction of emotional distress).)
17 Plaintiffs do not, and cannot, dispute that each of the claims before the court
18 sounds in tort and arises from the broadcasts and related Internet activity. Nor
19 can they evade their allegations that their injuries arose from attempts to
20 humiliate, ridicule and defame them. As a result, plaintiffs’ claims-however
21 styled-are governed by the USPA. (Belli v. Robert Brothers Furs (1966) 240
22 Cal.App.2d 284, 289-290 (USPA applies to invasion of privacy claim); accord,
23 Johnson v. Harcourt, Brace, Jovanovich, Inc. (1974) 43 Cal.App.3d 880, 895-896
24 & fn. 14 (Johnson); Fleury v. Harper & Row, Publishers, Inc. (9th Cir. 1983) 698
25 F.2d 1022, 1026-1027 (overruled on other grounds in In re Mclinn (9th Cir. 1984)
26 739 F.2d 1395, 1397); Baugh, supra, 929 F.Supp. at p. 756 & fn. 5; see also
27 Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 265 (publication’s
28 constitutional protection against libel suits extends to causes of action pleaded a
-27-
1 intentional infliction of emotional distress and invasion of privacy).)
2 Here, although plaintiffs may have a claim for intentional interference with
3 economic relations, the primary thrust of the claim is the website and its alleged
4 defamatory statements published by Crawford. As such, the single-publication rule
5 applies to the 1st Cause of Action as welL.
6 The statute of limitations bars the first four causes of action under the single
7 publication rule.
8 The only remaining claim is the 5th Cause of Action for injunctive relief. Neither
9 party addressed much time to this claim, however, as the first four claims fail, there
10 would be no basis for the injunctive relief to stand. Moreover, even a cursory review of
11 the claim shows it to be seeking an impermissible prior restraint on speech.
12 RECOMMENDATION
13 The court grants the motion to strike and dismisses the case.
14
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16 Dated this,; of October, 2008.
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28
DONALD R. ALVAREZ
Judge of the Superior Court
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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN BERNARDINO, SAN BERNARDINO DISTRICT
PLAINTIFF: BENCHMARK YOUNG ADULT SERVICES, INC., et al
DEFENDANT: MICHAEL CRAWFORD, et al
CASE NO.: CIVSS 803920
DECLARATION OF SERVICE BY MAIL
My business address is: 303 West Third Street, 4th Floor, San Bernardino, California 92415-0210.
i hereby declare that I am a citizen of the United States, over the age of 18, employed in the abovenamed
county, and not a party to nor interested in this proceeding. On October 23, 2008, i deposited in
the United States mail at San Bernardino, California, a sealed envelope (postage prepaid) which
contained a true copy of the attached:
NAME OF DOCUMENT: RULING ON DEFENDANTS SPECIAL MOTION TO
STRIKE PURSUANT TO CCP § 426.16
which was addressed as follows:
Name and Address of Person(s) Served:
Kirk & Toberty, LLP
J. Douglas Kirk
2201 Dupont Drive, Ste. 820
Irvine, CA 92612
Dreier, Stein, Kahan, Browne, Woods,
George, LLP
Benjamin D. Scheibe
Robert B. Broadbelt
2121 Avenue of the Star, 24th Floor
Los Angeles, CA 90067
Attorne s for Plaintiffs Benchmark & Lon necker
Call, Jensen & Ferrell
A Professional Corporation
Ward J. Lott
610 Newport Cente
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