Case Name: Paul Henreid v. Google LLC, et al.

Case No.: 19CV343172

(1) Special Motion of Microsoft Corporation to Strike Plaintiff’s Complaint
(2)
(3) Defendant Oath Holdings, Inc. and Verizon Communications, Inc.’s Joinder in the Special Motion of Microsoft Corporation to Strike Plaintiff’s Complaint
(4)

Factual and Procedural Background

Defendant Verizon Communications, Inc. (“Verizon”) is the parent corporation that owns defendant Oath Holdings, Inc. (“Oath”) and the brands Yahoo! And Yahoo! Search and operates Yahoo! And Verizon Media from its headquarters in Sunnyvale. (Complaint, p. 2, lines 6 – 9.) Defendant Oath is a Delaware Corporation that owns the brands Yahoo!, Yahoo! Search, and Verizon Digital Media Services and operates Yahoo! and Verizon Media from its headquarters in Sunnyvale. (Complaint, p. 2, lines 10 – 13.) Defendant Microsoft Corporation (“Microsoft”) is a computer software designer whose search engine Bing powers Yahoo! Search. (Complaint, p. 2, lines 14 – 15.)

Plaintiff Paul Henreid (“Henreid”) is a California attorney with two decades of civil litigation experience. (Complaint, p. 3, lines 2 – 3.) Plaintiff Henreid has been an active member of the California Bar in good standing since August 2001 with no disciplinary actions or complaints. (Complaint, p. 3, lines 11 – 12.) Plaintiff Henreid has maintained lifelong excellent credit with a FICO score over 800. (Complaint, p. 3, line 16.) Plaintiff is a private figure under defamation law. (Complaint, p. 3, line 25.)

On November 6, 2018, the 22nd Judicial Circuit Court in St. Louis, Missouri expunged plaintiff Henreid’s sole criminal conviction of one count of invasion of privacy. (Complaint, p. 4, lines 5 – 6.) Pursuant to Missouri Revised Statute section 610.410, the legal effect of the expungement order is to restore a person to the status he or she occupied prior to such arrests, pleas, trials, or convictions as if such events had never taken place. (Complaint, p. 4, lines 7 – 10.) Following expungement, plaintiff Henreid has a clean criminal history record. (Complaint, p. 4, lines 1 – 2 and 17 – 21.)

Defendants Google LLC and Alphabet Inc. (collectively, “Google”) made the following false and defamatory statement in its one sentence internet search engine summary of an article published by U.S. News & World Report on February 26, 2018: “In 1999, Paul Henreid was convicted of invasion of privacy in St. Louis … child pornography, possession of child pornography and child abuse.” (Complaint, p. 4, line 24 – p. 5, line 2.) Defendant Google’s one sentence summary alters and contradicts the original publication which states those charges (except invasion of privacy) were dismissed. (Complaint, p. 5, lines 3 – 5.) Defendant Google’s internet summary falsely states plaintiff Henreid was convicted of crimes and sex offenses. (Complaint, p. 5, lines 5 – 6.) Plaintiff Henreid has never been charged with child abuse. (Complaint, p. 5, line 8.)

Likewise, Yahoo’s internet search engine summary of the same publication also falsely states: “Paul Henreid was convicted to invasion of privacy in St. Louis for secretly filming sex partners … possession of child pornography and child.” (Complaint, p. 5, lines 9 – 11.)

Defendants’ one-sentence summary using an ellipsis alters the original meaning of the underlying publication by combining words from two different sentences to make it appear that dismissed charges were convictions. (Complaint, p. 6, lines 7 – 10 and 22 – 23.)

On February 19, 2019, plaintiff Henreid filed a complaint against defendants Google, Oath, Verizon, and Microsoft asserting causes of action for:

(1) Defamation Per Se
(2)
(3) Right of Privacy – False Light
(4)

On April 29, 2019, defendant Microsoft filed the motion now before the court, a special motion to strike plaintiff Henreid’s complaint.

Also on April 29, 2019, defendant Google filed a special motion to strike plaintiff Henreid’s complaint.

On May 1, 2019, defendants Oath and Verizon filed a joinder in defendant Microsoft’s special motion to strike.

On May 20, 2019, plaintiff Henreid and defendant Google filed a Stipulation of Dismissal with Prejudice as to [Google] and for Entry of Judgment. Thereafter, on June 6, 2019, Final Judgment was entered pursuant to the stipulation.

On August 16, 2019, plaintiff Henreid filed opposition to defendant Microsoft’s special motion to strike.

Discussion

III. Procedural violation.
IV.

As a preliminary matter, the court notes that plaintiff Henreid’s memorandum of points and authorities in opposition exceeds the page limitations set forth in California Rules of Court, rule 3.1113, subdivision (d) which states, “no opening or responding memorandum may exceed 15 pages.” Plaintiff Henreid’s responding memorandum of points and authorities is 18 pages. Plaintiff did not seek leave in advance from this court for a page extension as permitted by California Rules of Court, rule 3.113, subdivision (e).

“A memorandum that exceeds the page limits of these rules must be filed and considered in the same manner as a late-filed paper.” (Cal. Rules of Court, rule 3.1113, subd. (g).) A court may, in its discretion, refuse to consider a late-filed paper but must indicate so in the minutes or in the order. (Cal. Rules of Court, rule 3.1300, subd. (d).) Plaintiff Henreid is hereby placed on notice that any future failure to comply with the California Rules of Court may result in the court’s refusal to consider plaintiff’s papers.

V. Requests for judicial notice.
VI.

Both parties request judicial notice of various facts and documents. Defendant Microsoft’s request for judicial notice, exhibits D and E, is GRANTED. Plaintiff Henreid’s request for judicial notice, number 5, is GRANTED. All other requests for judicial notice are DENIED as the court does not find the requests to be necessary, helpful or relevant. (See Duarte v. Pacific Specialty Insurance Company (2017) 13 Cal.App.5th 45, 51, fn. 6—denying request where judicial notice is not necessary, helpful or relevant.)

VII. Defendant Microsoft’s special motion to strike plaintiff Henreid’s complaint and defendants Oath and Verizon’s joinder thereto is GRANTED.
VIII.

A. The two-step procedure for anti-SLAPP motions.
B.

Code of Civil Procedure section 425.16 requires a court to engage in a two-step process when determining whether a defendant’s anti-SLAPP motion should be granted. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one “arising from” protected activity. The moving defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains were taken in furtherance of the defendant’s right of petition or free speech under the United States or California Constitution in connection with a public issue. If the court finds such a showing has been made, it then must consider whether the plaintiff has demonstrated a probability of prevailing on the claim. In making these determinations, the trial court considers the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)

C. Step one – threshold showing that the challenged causes of action arise from protected activity.
D.

Defendant Microsoft has the initial burden of demonstrating that the two causes of action in the complaint “arise from” some protected activity. “Defendant need only make a prima facie showing that plaintiff’s complaint ‘arises from’ defendant’s constitutionally-protected free speech or petition activity.” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2019) ¶7:991, pp. 7(II)-60 citing Governor Gray Davis Committee v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 458 – 459.)

“A defendant meets the burden of showing that a plaintiff’s action arises from a protected activity by showing that the acts underlying the plaintiff’s cause of action fall within one of the four categories of conduct described in section 425.16, subdivision (e). [Citation.] Those four categories are: ‘(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.’” (Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1569 (Siam).)

Defendant Microsoft argues plaintiff Henreid’s claims come within either the second, third, or fourth categories of protected activity focusing primarily on the fourth category. The court will confine its discussion to the third and fourth categories.

“Unlike statements made before a public body, statements and writings in a public place or forum are protected under the anti-SLAPP statute only if they are made ‘in connection with an issue of public interest.’” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2019) ¶7:669, p. 7(II)-25.) “The anti-SLAPP statute also protects ‘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.’ [Citation.] This provision applies to private communications concerning issues of public interest; no public forum is required.” (Id. at ¶7:685, p. 7(II)-27 (italics original) citing Hailstone v. Martinez (2008) 169 Cal.App.4th 728, 736.)

“A public forum is a place open to the use of the general public for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” (Id. at ¶7:674, pp. 7(II)-22 to 7(II)-23 citing Kurwa v. Harrington, Foxx, Dubrow & Canter, LLP (2007) 146 Cal.App.4th 841, 846.) In Kronmeyer v. Internet Movie Database Inc. (2007) 150 Cal.App.4th 941, 950, the court held publicly-accessible internet websites are public forums:

The California Supreme Court held that Web sites accessible to the public are “public forums” for the purposes of the anti-SLAPP statute. (Barrett v. Rosenthal (2006) 40 Cal.4th 33, 41, fn. 4 [51 Cal. Rptr. 3d 55, 146 P.3d 510].) “ ‘Cases construing the term “public forum” as used in section 425.16 have noted that the term “is traditionally defined as a place that is open to the public where information is freely exchanged.” [Citation.] “Under its plain meaning, a public forum is not limited to a physical setting, but also includes other forms of public communication.”’ (ComputerXpress[, Inc. v. Jackson (2001)] 93 Cal.App.4th 993, 1006 [113 Cal. Rptr. 2d 625].) Statements on SHAC USA’s Web site are accessible to anyone who chooses to visit the site, and thus they ‘hardly could be more public.’ (Wilbanks v. Wolk [(2004)] 121 Cal.App.4th [883,] 895 [17 Cal. Rptr. 3d 497]; see ComputerXpress, at p. 1007.)” (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc., supra, 129 Cal.App.4th at p. 1247.) We are satisfied that respondent’s Web site constitutes a public forum.

Here, the claims asserted by plaintiff Henreid arise from written statements made on the Google and Yahoo search websites which are public forums. In opposition, plaintiff Henreid does not dispute the fact that the allegedly defamatory statements were made in a public forum. However, plaintiff Henreid does take issue with whether the statements were made in connection with an issue of public interest. The term, “public interest,” is construed broadly to include, “not only governmental matters, but also private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a governmental entity. ‘Although matters of public interest include legislative and governmental activities, they may also include activities that involve private persons and entities, especially when a large, powerful organization may impact the lives of many individuals.” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO BEFORE TRIAL (The Rutter Group 2019) ¶7:697, p. 7(II)-26 citing Du Charme v. International Brotherhood of Electrical Workers, Local 45 (2003) 110 Cal.App.4th 107, 115 – 116, et al.)

The court in Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 924 (Rivero) articulated the boundaries of what constitutes a ‘public issue’ or issue of ‘public interest’ as those terms are used in section 425.16, subdivision (e). Surveying the pertinent case law, the Rivero court identified three categories of statements that fit the bill: (1) the subject of the statement concerned a person or entity in the public eye; (2) the statement or activity involved conduct that could directly affect large numbers of people beyond the direct participants; or (3) the statement or activity concerned a topic of widespread public interest. (Rivero, supra, 105 Cal.App.4th at pp. 919, 924.) In Rivero, the court upheld a trial court decision denying an employee union’s anti-SLAPP motion of a defamation complaint by a supervisor of eight janitors at a public university. The union published information asserting the supervisor was suspended when subordinates complained of the supervisor soliciting bribes, hiring family members, and practicing favoritism. The court concluded that there was no public issue involved. “Even though public policy might favor criticism of unlawful workplace activity, such activity below some threshold level of significance is not an issue of public interest.” (Rivero, supra, 105 Cal.App.4th at p. 924.)

The court in Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1132 (Weinberg) also addressed the issue, delineating some attributes of an issue which would render it one of public, rather than merely private, interest: “First, ‘public interest’ does not equate with mere curiosity. [Citations.] Second, a matter of public interest should be something of concern to a substantial number of people. [Citation.] Thus, a matter of concern to the speaker and a relative small, specific audience is not a matter of public interest. [Citations.] Third, there should be some degree of closeness between the challenged statements and the asserted public interest [citation]; the assertion of a broad and amorphous public interest is not sufficient. [Citations.] Fourth, the focus of the speaker’s conduct should be the public interest rather than a mere effort ‘to gather ammunition for another round of [private] controversy. . . .’ [Citation.] Finally, . . . [a] person cannot turn otherwise private information into a matter of public interest simply by communicating it to a large number of persons.” (Id. at pp. 1132-1133.)

Defendant Microsoft relies, in part, upon Chaker v. Mateo (2012) 209 Cal.App.4th 1138 (Chaker). In Chaker, plaintiff Darren D. Chaker and defendant Nicole Mateo had a brief romantic relationship which resulted in Nicole Mateo becoming pregnant and delivering plaintiff Chaker’s child. Chaker and Nicole Mateo engaged in a contentious paternity and child support dispute.

In 2010 a series of derogatory statements about Chaker, and his forensics business, appeared on an Internet Web site where members of the public may comment on the reliability and honesty of various providers of goods and services and on another social networking Web site which provided an open forum for members of the public to comment on a variety of subjects. The following are statements which refer to Chaker and appeared on one of the sites: “You should be scared. This guy is a criminal and a deadbeat dad. As you can see, I am the child’s grandma so I know. If you should eve [sic] come across this person, be very careful. He may be taking steroids so who knows what could happen.” “I would be very careful dealing with this guy. He uses people, is into illegal activities, etc. I wouldn’t let him into my house if I wanted to keep my possessions or my sanity.” Chaker attributes both of these statements, as well as others which accuse him of fraud, deceit and picking up streetwalkers and homeless drug addicts, to defendant and respondent Wendy Mateo (Wendy), Nicole’s mother and the grandmother of his child. The Internet Web sites contained other derogatory statements apparently posted by other defendants, including Nicole.

(Chaker, supra, 209 Cal.App.4th at p. 1142.)

Chaker sued Nicole Mateo and others for defamation. Wendy Mateo filed a special motion to strike which the trial court granted. The Chaker court affirmed the ruling. Relying on Code of Civil Procedure section 425.16, subdivision (e)(3), the Chaker court held Wendy Mateo’s statements were made in a public forum, i.e., the Internet. The Chaker court further held the statements were of public interest. “The statements posted to the Ripoff Report Web site about Chaker’s character and business practices plainly fall within the rubric of consumer information about Chaker’s ‘Counterforensics’ business and were intended to serve as a warning to consumers about his trustworthiness.” (Id. at p. 1146.) The Chaker court explained, “the public interest may extend to statements about conduct between private individuals.” (Id. at p. 1145.) “[T]he question whether something is an issue of public interest must be construed broadly. An issue of public interest is any issue in which the public is interested. A matter of public interest should be something of concern to a substantial number of people. There should be some degree of closeness between the challenged statements and the asserted public interest. The focus of the speaker’s conduct should be the public interest. Nevertheless, it may encompass activity between private people.” (Id.; citations and punctuation omitted.)

Here, the court finds the allegedly defamatory statements appear as Internet search results (in a public forum) in connection with an issue of some widespread public interest and, therefore, defendant Microsoft has met its burden of showing that plaintiff Henreid’s action arises from protected activity. Specifically, in early 2018, then Missouri governor Eric Greitens (“Greitens”) had been indicted on a felony invasion of privacy charge based on assertions that Greitens took a compromising photo of the woman Greitens had an extramarital affair with and threatened to release the photo if the woman exposed their relationship. By his own admission, plaintiff Henreid retained an attorney to obtain clemency from prior Missouri governor Jeremiah Nixon and also to seek expungement of his prior conviction for invasion of privacy in Missouri. Plaintiff Henreid did not authorize his attorney to seek clemency from Greitens, but nevertheless plaintiff Henreid’s attorney did so and the attempt became newsworthy because Henreid’s attorney sought clemency from Greitens using the same argument Greitens asserted in seeking dismissal of the invasion of privacy charge against him. It is in that context that facts regarding plaintiff Henreid’s 1999 prior conviction appeared and became the subject of public interest again in 2018. Plaintiff Henreid’s argument in opposition regarding the propriety or prudence of seeking clemency is of no relevance. The issue is whether the statements were made in connection with an issue of public interest and indeed they were.

[Plaintiff Henreid recognizes this widespread public interest in opposition, “Now, as a result of [his attorney] backstabbing his own client, an internet search of Plaintiff’s name reveals numerous articles beginning with the St. Louis Post-Dispatch that leads to articles republished on the Associated Press from the Houston Chronicle, Washington Post, U.S. News & World Report, American Bar Association Journal, Business Insider, Chicago Tribune, CBS News, local and regional newspapers, etc.” (See p. 7, lines 2 – 7 of Plaintiff’s Opposition to Defendants’ Special Motion to Strike.)]

In opposition, plaintiff Henreid points out, “There should be some degree of closeness between the challenged statements and the asserted public interest.” (Chaker, supra, 209 Cal.App.4th at p. 1145; see also Weinberg, supra, 110 Cal.App.4th 1122, 1132-1133.) Henreid contends there is no connection between the alleged defamatory statement’s reference to charges which were dismissed (“possession of child pornography and child [abuse]”) and the matter of public interest (a request by Henreid’s attorney for clemency from Greitens). Yet, the very news article from which the statement is drawn cites the charges which were dismissed against Henreid as a basis for distinguishing between Henreid’s conduct and Greitens’ conduct. (“Washington University law professor Peter Joy said Henreid’s guilty plea after the other charges were dropped offers a distinction between the two cases. ‘But still, what [Henreid] pled to is what’s been alleged to occur with the governor [Greitens],’ Joy said. ‘So for consistency’s sake, one would think the pardon would be granted.”) Thus, there is some connection between the dismissed charges and the matter of public interest in the news article.

E. Step two – probability of prevailing.
F.

“[I]f a court ruling on an anti-SLAPP motion concludes the challenged cause of action arises from protected petitioning, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. To satisfy this prong, the plaintiff must state and substantiate a legally sufficient claim. Put another way, the plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 741 (Jarrow); internal citations and punctuation omitted.)

“The burden is on plaintiff to produce evidence that would be admissible at trial—i.e., to proffer a prima facie showing of facts supporting a judgment in plaintiff’s favor.” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2019) ¶7:1005, p. 7(II)-61 citing Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1087; italics original.) “The ‘probability of prevailing’ is tested by the same standard governing a motion for summary judgment, i.e., in opposing a SLAPP motion, it is plaintiff’s burden to make a prima facie showing of facts that would support a judgment in plaintiff’s favor.” (Id. at ¶7:1008, pp. 7(II)-62 to 7(II)-63 citing Taus v. Loftus (2007) 40 Cal.4th 683, 714, et al.) “The court does not weigh credibility or comparative strength of the evidence. The court considers defendant’s evidence only to determine if it defeats plaintiff’s showing as a matter of law.” (Id. citing Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.)

“ ‘The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.’ ” (John Doe 2 v. Superior Court (2016) 1 Cal.App.5th 1300, 1312, 206 Cal.Rptr.3d 60; accord, Taus v. Loftus, supra, 40 Cal.4th at p. 720, 54 Cal.Rptr.3d 775, 151 P.3d 1185; Wong v. Jing, supra, 189 Cal.App.4th at p. 1369, 117 Cal.Rptr.3d 747.) “In general, … a written communication that is false, that is not protected by any privilege, and that exposes a person to contempt or ridicule or certain other reputational injuries, constitutes libel.” (Shively v. Bozanich (2003) 31 Cal.4th 1230, 1242, 7 Cal.Rptr.3d 576, 80 P.3d 676.) The defamatory statement must specifically refer to, or be “of or concerning,” the plaintiff. (Blatty v. New York Times Co. (1986) 42 Cal.3d 1033, 1042, 232 Cal.Rptr. 542, 728 P.2d 1177.)

(Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1259–1260.)

“When a false light claim is coupled with a defamation claim, the false light claim is essentially superfluous, and stands or falls on whether it meets the same requirements as the defamation cause of action.” (Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1385, fn. 13; see also CACI, No. 1802.)

Here, the alleged defamatory statement by defendants Microsoft (and Oath and Verizon) is the internet search result which attributes Henreid as being “convicted of invasion of privacy in St. Louis for secretly filming sex partners … possession of child pornography and child.” (Complaint, p.5, lines 9 – 11.) Henreid does not deny he was convicted for invasion of privacy. Thus, the claim for defamation is based on the search result’s allegedly false assertion that Henreid was convicted of child pornography.

In the complaint, plaintiff Henreid cites CACI, No. 1704 as the basis for his defamation claim. CACI, No. 1704 sets forth the Judicial Council Civil Jury Instructions of a claim for defamation of a private figure regarding a matter of private concern. As explained above, this issue concerns a matter made in connection with a matter of public interest. Consequently, CACI, No. 1702 is more appropriate since it sets forth the jury instruction of a claim for defamation of a private figure regarding a matter of public concern.

Even as to private-figure plaintiffs, there are now significant constitutional restrictions on the right to recover damages. A private-figure plaintiff must prove at least negligence to recover any damages and, when the speech involves a matter of public concern, he must also prove New York Times malice, supra, 376 U.S. 254, 84 S.Ct. 710, to recover presumed or punitive damages. [Citations.] This malice must be established by “clear and convincing proof.” [Citation.] For the New York Times standard to be met, “the publisher must come close to willfully blinding itself to the falsity of its utterance.” [Citations.] When the speech involves a matter of public concern, a private-figure plaintiff has the burden of proving the falsity of the defamation. [Citation.]

(Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 747.)

Private-figure plaintiffs must prove actual malice to recover punitive or presumed damages for defamation if the matter is one of public concern. They are only required to prove negligence to recover damages for actual injury to reputation. (See Khawar v. Globe Internat. (1998) 19 Cal.4th 254, 273–274 (Khawar).) Thus, to establish a probability of prevailing, plaintiff Henreid must show actual injury or must prove actual malice in order to recover presumed/ punitive damages. In reviewing plaintiff Henreid’s opposition, plaintiff Henreid’s evidence falls short.

Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering. Of course, juries must be limited by appropriate instructions, and all awards must be supported by competent evidence concerning the injury, although there need be no evidence which assigns an actual dollar value to the injury.

(Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 350.)

Plaintiff Henreid does not proffer any admissible evidence of injury. At best, plaintiff Henreid states in his declaration, “I have already suffered libelous statements from another person who even knew about the Expungement, but made defamatory statements based upon the defamatory search results at issue in this lawsuit.” This statement is not competent evidence concerning any injury (e.g., impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering).

To obtain presumed damages, plaintiff Henreid must make a prima facie showing of actual malice.

In this context, actual malice means that the defamatory statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.” (New York Times Co. v. Sullivan, supra, 376 U.S. 254, 280, 84 S.Ct. 710, 11 L.Ed.2d 686.) Reckless disregard, in turn, means that the publisher “in fact entertained serious doubts as to the truth of his publication.” (St. Amant v. Thompson, supra, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262.) To prove actual malice, therefore, a plaintiff must “demonstrate with clear and convincing evidence that the defendant realized that his statement was false or that he subjectively entertained serious doubts as to the truth of his statement.” (Bose Corp. v. Consumers Union of U.S., Inc., supra, 466 U.S. 485, 511, fn. 30, 104 S.Ct. 1949, 80 L.Ed.2d 502; see also McCoy v. Hearst Corp. (1986) 42 Cal.3d 835, 860, 231 Cal.Rptr. 518, 727 P.2d 711.)

Actual malice is judged by a subjective standard; otherwise stated, “there must be sufficient evidence to permit the conclusion that the defendant … had a ‘high degree of awareness of … probable falsity.’ ” (Harte–Hanks Communications v. Connaughton, supra, 491 U.S. 657, 688, 109 S.Ct. 2678, 105 L.Ed.2d 562.) To prove this culpable mental state, the plaintiff may rely on circumstantial evidence, including evidence of motive and failure to adhere to professional standards. (Ibid.; see also Reader’s Digest Assn. v. Superior Court, supra, 37 Cal.3d 244, 257–258, 208 Cal.Rptr. 137, 690 P.2d 610.)

(Khawar, supra, 19 Cal.4th at pp. 275–276.)

In his opposition, plaintiff Henreid contends his complaint has alleged malice twice, once at page 8 and once at the end. However, plaintiff Henreid misunderstands his burden on a special motion to strike. Plaintiff Henreid must do more than just state malice in the complaint; plaintiff Henreid must substantiate that allegation with a prima facie showing of facts. “In order to establish a probability of prevailing on the claim, a plaintiff responding to an anti-SLAPP motion must ‘state and substantiate a legally sufficient claim.’” (Taus v. Loftus (2007) 40 Cal.4th 683, 713; see also Jarrow, supra, 31 Cal.4th at p. 741.)

Since plaintiff Henreid has not demonstrated a probability of prevailing, the court need not reach defendant Microsoft’s argument that section 230 of the Communications Decency Act applies to bar plaintiff Henreid’s claims as a matter of law.

Defendant Microsoft’s special motion to strike plaintiff Henreid’s complaint pursuant to Code of Civil Procedure section 425.16 and defendants Oath and Verizon’s joinder thereto is GRANTED.