Case Name: Patrick v. Patrick
Case No.: 18CV332169

This is an action for defamation. The complaint alleges that plaintiff Ronald S. Patrick (“Plaintiff”) and defendant Ruthven Patrick (“Defendant”) were married for a period of time until their divorce in March 2011. (See complaint, ¶ 6.) During the divorce proceedings, Defendant alleged that Plaintiff committed domestic violence against her, and filed an application for a domestic violence restraining order against Plaintiff. (Id.) Plaintiff prepared an agreement during the divorce proceedings entitled “Personal Conduct Contract” that provided, in part:

4. Personal Conduct Provisions: The parties agree to be bound by the following personal conduct terms:

a. For duration of this contract Ronald shall stay at least 300 yards away from Ruth, Ruth’s home and Ruth’s place of employment. For the duration of this contract Ronald shall not contact or attempt to contact Ruth by any means including but not limited to email, telephone, text message, via third parties or by any other method.
b. Until January 1, 2014 Ronald shall stay at least 300 yards away from James Patrick, James’ school and James’ place of employment. For the duration of this contract Ronald shall not contact or attempt to contact James by any means including but not limited to email, phone, text message, via third parties or by any other method. When James turns 18, he shall be provided this contract and shall have the right to rescind the contract by signing the attached notice of rescission. It shall not be a violation of this contract for James Patrick to initiate contact with his father Ronald Patrick or for Ronald Patrick to engage in contact that James initiates.
c. For the duration of this contract Ruth shall not disclose to anyone, including any government entity, the allegations of her domestic violence restraining order petition unless ordered to do so by a court order or subpoena. Ruth shall further not disclose to anyone, except in a confidential therapeutic setting with a licensed mental health professional bound by privilege, that she believes she was a victim of domestic violence unless ordered to do so by a court order or subpoena.
d. The duration of this contract shall be five years. At the end of the five years, December 22, 2015, if Ronald has his citizenship application pending, the contract shall continue until he either receives his citizenship pursuant to that application or that application is denied….

(Complaint, ¶¶ 9-10, exh. A.)

Post-divorce and after execution of the Personal Conduct Contract, Defendant started a support group for victims of domestic violence, WomenSV, and on April 9, 2018, Defendant appeared on the Today Show with Megyn Kelly. (See complaint, ¶ 12.) The promotional video for the show includes a voiceover from Megyn Kelly where she states that “Ruth Patrick started a domestic support group after suffering years of domestic abuse herself.” (Complaint, ¶ 15.) Plaintiff attaches a transcript of the segment and the video itself:

[Megyn Kelly:] According to the CDC, 20 people are abused by intimate partners every minute. That is at least 10 million cases of domestic abuse each year. Experts say women of affluent backgrounds may stay longer in an abusive relationship, and the longer they stay, the more difficult their escape can be. Watch.

[Sandy Harvey]: He lost his temper and his fists went in the wall right above my head, barely missed me. And I thought, that’s it. The next time that could be me.

[Sally Davies, with caption stating: SALLY DAVIES[:] DOMESTIC VIOLENCE VICTIM]: You’re fighting more and then you get used to the fighting and then… and then at some point, maybe, I realized, we’re not actually fighting. I’m just getting yelled at.

[Defendant, with caption stating: RUTH PATRICK[:] ADVOCATE FOR DOMESTIC VIOLENCE VICTIMS]: I get two to three women calling me every day and unfortunately, many of them think they’re all alone.

[Kelly:] Sandy Harvey was married to an executive at a tech firm in Silicon Valley. Sally Davies was a scuba instructor teaching around the world and has a master’s in marine biology. And Ruth Patrick started a domestic abuse support group after suffering through years of abuse herself. They all thought they knew what abuse looked like. And yet, each says she suffered for years at the hands of an abuser.

[Harvey, with caption stating: SANDY HARVEY[:] DOMESTIC VIOLENCE VICTIM:] Our spouses or partners are powerful. They’re executives. They’re well known. It’s that much more difficult, then, to leave and be also public with that.

[Davies:] I would never have imagined that I would be in that situation. How can you love somebody so much and be so afraid of them at the same time?

[Defendant:] Because of the shame, the fear, the social stigma, many times women have not reached out to the police.

[Kelly:] While physical abuse gets more acknowledgement, it is the mental abuse, the loss of identity, that can be more insidious.

[Davies:] The physical abuse, you can go to somebody and say, “Hey, look. I’ve got a black eye. My husband is a bad man. He shouldn’t be doing this to me.” But you go to somebody and you say, “My husband yells at me all the time. He screams at me and I’m afraid… and…” People are just like, “well… you know.”

[Kelly:] After years of abuse, Sally says she began to develop severe complex PTSD of the dissociative type, or her identity fragmented into multiple personalities to cope with her stress.

[Davies:] I would start to dissociate and get really fuzzy and not really know what was going on.

[Kelly:] But it wasn’t until the abuse was directed at her son that she resolved to get out.

[Davies:] My ex started to treat my son the same way that he was treating me and my son was reacting the same way that I did.

[Kelly:] Sally got out but realized quickly her fight was just beginning. Sandy was in a similar situation.

[Harvey:] A lot of anger on his part. It came out towards me and the children. And then it escalated. And as it did, I left. I took the kids with me. I thought I did all the right things.

[Kelly:] But she would soon find out her husband was more disturbed than she ever could have imagined.

Back with me now, Ruth Patrick, Sandy Harvey, and Sally Davies. Sandy, let me pick it up with you because that’s where our taped piece ended.

So, your husband was a successful Silicon Valley executive. You were separated. You had left your 5 year old son with him for a weekend visit. And then… the morning. It was a Sunday morning?

[Davies, with caption stating: HIDDEN ABUSE[:] WOMEN WHO ESCAPED THEIR VIOLENT PARTNERS SPEAK OUT:] Well, in the end, I’m the one that found them. But we spoke the night before and we were discussing divorce. We were selling the house and so on. And it was a calm discussion, like you and I are having. But in the morning, they were dead. He shot and killed our five year old son and then himself. And, you know, it’s not… it’s not… things like this are not supposed to happen but sometimes we just don’t understand what’s really going on with somebody. And… and… and I think if anything that I really have learned is that it just… it takes time. You… you think you… like I said, you think you know somebody but also, even when you leave—and I had left, we were separated for a year—you still have to protect yourself and your kids.

[Kelly, with caption still stating: HIDDEN ABUSE[:] WOMEN WHO ESCAPED THEIR VIOLENT PARTNERS SPEAK OUT:] He had emotionally abused you. He had physically abused your children.

[Davies, with caption still stating: HIDDEN ABUSE[:] WOMEN WHO ESCAPED THEIR VIOLENT PARTNERS SPEAK OUT:] Mostly, the two older ones. And it was tough on them.

[Kelly, with caption still stating: HIDDEN ABUSE[:] WOMEN WHO ESCAPED THEIR VIOLENT PARTNERS SPEAK OUT::] I know that so many women for the sake of the children.

[Davies, with caption still stating: HIDDEN ABUSE[:] WOMEN WHO ESCAPED THEIR VIOLENT PARTNERS SPEAK OUT::] Yeah. And it’s not necessarily the right thing to do. Sometimes, it’s better to leave and take the kids and change the situation. And… and it is possible to rebuild. You know, this happened a long time ago, and for a while, I was isolated. And I had learned what to do and how to do it. But eventually, you know, we’re getting support and understanding all of this better. And, you know, Ruth’s group, you know, Women SV, and counseling and other avenues and you can really make progress.

[Kelly, with caption still stating: HIDDEN ABUSE[:] WOMEN WHO ESCAPED THEIR VIOLENT PARTNERS SPEAK OUT:] Ruth, it’s… I know you too are a survivor of domestic abuse. And you formed this amazing group for women who felt too isolated to reach out to anybody. There’s almost a stigma because they’re supposed to be able to manage it. I know that there’s a saying, “no one can hear you scream on a five acre estate.” And… but they suffer just as much as lower-income women do when it comes to physical and emotional abuse. It’s probably no accident that her husband took the life of their child and his own life when he had been told it’s over. That’s a dangerous period.

[Defendant, with caption stating RUTH PATRICK[:] ADVOCATE FOR DOMESTIC VIOLENCE VICTIMS:] Yes. You know the dynamics of power and control are the same. It doesn’t matter what economic area you come from, but the more money, the more power, the more influence you have, the easier it is to wield those… wield the power and control and coerce. And then you’ve got this image on the outside that you’re this fine, upstanding citizen, a pillar of the community. It’s almost like Dr. Jekyll and Mr. Hyde.

[Kelly, with caption switched, now stating: HIDDEN ABUSE[:] WOMEN WHO ESCAPED THEIR VIOLENT PARTNERS SPEAK OUT:] And they use finances and their power against the women in clever ways.

[Defendant, with caption still stating: HIDDEN ABUSE[:] WOMEN WHO ESCAPED THEIR VIOLENT PARTNERS SPEAK OUT:] Absolutely. It’s all about power and control and getting inside their head. And they can… there’s a term called “gaslighting” where you start to… you can manipulate and brainwash someone to the point where they think that they’re… they’re doubting their memory. Over a time, they’re doubting their sanity. And they start to doubt reality. And if you couple that with their partners’ attempt to prove that, or make all kinds of allegations that there’s something wrong with them, and they get more isolated over time, it’s very common for women to lose their friends, lose their own family members. Their own family members can be turned against them because they’re that powerful. These are successful, powerful people who are, in many cases, running companies, they’re doctors, lawyers, engineers. No one would ever guess they had that dark side. It’s about control in the end.

[Kelly, with caption still stating: HIDDEN ABUSE[:] WOMEN WHO ESCAPED THEIR VIOLENT PARTNERS SPEAK OUT:] Sally, you met your husband when you were just 24, I think?

[Davies, with caption still stating: HIDDEN ABUSE[:] WOMEN WHO ESCAPED THEIR VIOLENT PARTNERS SPEAK OUT:] Yeah, 24.

[Kelly, with caption still stating: HIDDEN ABUSE[:] WOMEN WHO ESCAPED THEIR VIOLENT PARTNERS SPEAK OUT:] And he was running his own company. And how… when did you first realize that you had been abused?

[Davies, with caption still stating: HIDDEN ABUSE[:] WOMEN WHO ESCAPED THEIR VIOLENT PARTNERS SPEAK OUT, changing to SALLY DAVIES[:] DOMESTIC VIOLENCE VICTIM, then back to HIDDEN ABUSE[:] WOMEN WHO ESCAPED THEIR VIOLENT PARTNERS SPEAK OUT:] Um… I don’t think that my eyes were really opened until we started to receive, like, couples therapy, and… thinking that it was going to save the marriage and… there was something wrong with communication, or, that’s why we’re fighting all the time. And then, once I started talking to a therapist, Dr. H—Dr. Heitler—she quickly realized that it was something a lot more serious.

[Kelly, with caption stating: HIDDEN ABUSE[:] WOMEN WHO ESCAPED THEIR VIOLENT PARTNERS SPEAK OUT:] It’s been characterized by the courts as severe emotional abuse that you suffered. So severe that a court wound up giving you full custody of your child even though he was raised in Saint Martin where your… where your now ex-husband is, which is the first of its kind to remove a child from his country of origin based purely on emotional abuse. Can you tell us about these dissociative states?

[Davies, with caption still stating: HIDDEN ABUSE[:] WOMEN WHO ESCAPED THEIR VIOLENT PARTNERS SPEAK OUT:] I guess my brain was sort of protecting me from myself in a way, and when something bad would happen, it’s almost like comforting you, or, you know… you sort of close down, and then, you just develop these different states, like…. I don’t know. One of them is like a mouse, so I feel like a little, tiny mouse. And that… I don’t know, I guess appeased him in some way? And then…

[Kelly, with caption stating: HIDDEN ABUSE[:] WOMEN WHO ESCAPED THEIR VIOLENT PARTNERS SPEAK OUT:] Did he yell at you? What was the abuse like?

[Davies, with caption still stating: HIDDEN ABUSE[:] WOMEN WHO ESCAPED THEIR VIOLENT PARTNERS SPEAK OUT:] It’s this sort of, consistent, always present fear, and it can be something, you know, as… as, you know, small as just, you know, like yelling and raging, you know, or, it can quickly escalate. But it’s also, you know, constantly questioning your memory and your sanity.

[Kelly, with caption stating: HIDDEN ABUSE[:] WOMEN WHO ESCAPED THEIR VIOLENT PARTNERS SPEAK OUT:] The gaslighting.

[Davies, with caption still stating: HIDDEN ABUSE[:] WOMEN WHO ESCAPED THEIR VIOLENT PARTNERS SPEAK OUT:] To the point where you think, like, is… like, what is real? Is this real? I’m not entirely sure.

[Kelly, with caption stating: HIDDEN ABUSE[:] WOMEN WHO ESCAPED THEIR VIOLENT PARTNERS SPEAK OUT:] This is important because little girls are taught about physical abuse. They’re not often taught about emotional abuse. And… and that sort of psychological manipulation. Just want to give you a word on couples therapy because I know this is an important point, Ruth.

[Defendant, with caption still stating: HIDDEN ABUSE[:] WOMEN WHO ESCAPED THEIR VIOLENT PARTNERS SPEAK OUT, switched to RUTH PATRICK[:] ADVOCATE FOR DOMESTIC VIOLENCE VICTIMS:] Yes. So many of my ladies who have been through abusive relationships have tried couples counseling and unfortunately, a lot of therapists—there are some therapists who are very well versed in it, and it’s wonderful—but they don’t typically get a lot of education in domestic violence in this area. So they go there thinking that it’s a communication issue, or if they’re only more assertive, or what’s my role in it? And unfortunately, the abuser can create an alignment with the therapist so it becomes the two of them fixing her. And if she dares to say something about how he has hurt her, he’ll see that as a shame… something that’s shaming to him and punish her for it later. So inadvertently, it can end up colluding with the abuser.

[Kelly, with caption stating: HIDDEN ABUSE[:] WOMEN WHO ESCAPED THEIR VIOLENT PARTNERS SPEAK OUT:] I know you say it’s dangerous if you stay, and it’s dangerous if you go.

[Defendant, with caption still stating: HIDDEN ABUSE[:] WOMEN WHO ESCAPED THEIR VIOLENT PARTNERS SPEAK OUT:] Safety planning never stops. It never stops because they are punitive and they are vengeful.

[Kelly, with caption stating: HIDDEN ABUSE[:] WOMEN WHO ESCAPED THEIR VIOLENT PARTNERS SPEAK OUT:] I want to tell the audience we did reach out to Sally’s ex-husband, Chris Davies. He denies the abuse allegations made against him and complains that the courts, which did believe them, were corrupt and unfair in their ruling for the custody of their son, Kieran. We are very glad you are well and understanding that it is dangerous in the first couple of years after you leave, we are wishing you all the best and applaud your courage in being here.

Kelly, with caption stating: FOR MORE[:] TODAY.COM/MegynToday:] If you would like to reach out to Ruth regarding her support group which has done so much good, we’re going to post the information for you today at today.com/MegynToday.

(Fox decl. in opposition to special motion to strike, exhs. A, B.)

On July 17, 2018, Plaintiff filed a complaint against Defendant, asserting causes of action for:

1) Breach of written contract;
2) Breach of the covenant of good faith and fair dealing;
3) Defamation;
4) False light invasion of privacy; and,
5) Intentional infliction of emotional distress.

Plaintiff’s first two causes of action for breach of written contract and breach of the covenant of good faith and fair dealing allege that “Defendant breached the Agreement by disclosing to Megyn Kelly on the Today Show that she believed that she was a victim of domestic violence.” (Complaint, ¶ 23.)

Plaintiff’s defamation causes of action alleges that “Defendant falsely represented on the Today Show with Megyn Kelly, an internationally broadcast program, that Plaintiff was a domestic abuser and had committed acts of domestic violence upon Plaintiff, which are illegal and criminal acts, and constitute the most egregious and intolerable accusations that could be made against someone.” (Complaint, ¶ 30; see also complaint, ¶ 41 (alleging same).) Plaintiff’s fifth cause of action for intentional infliction of emotional distress is dependent on the defamation causes of action. (See complaint, ¶ 47 (alleging that the fifth cause of action is premised on “Defendant’s actions”).)

On October 22, 2018, Defendant filed a special motion to strike the complaint pursuant to Code of Civil Procedure section 425.16.

Defendant’s special motion to strike pursuant to Code of Civil Procedure section 425.16

In Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, the California Supreme Court established the trial court’s duty in ruling on an anti-SLAPP motion to strike:

Section 425.16, subdivision (b)(1) requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. 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,’ as defined in the statute. [Citation.] If the court finds [that defendant has made its threshold showing], it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’

(Id. at 67.)

“[I]n order to establish the requisite probability of prevailing [citation], the plaintiff need only have ‘stated and substantiated a legally sufficient claim.’” (Navellier v. Sletten (2002) 29 Cal. 4th 82, 88, quoting Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal. 4th 1106, 1123.) “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.’” (Id. at 88-89, quoting Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) “Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute.” (Id. at 89.) “In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim.” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.)

Requests for judicial notice

Both Plaintiff and Defendant request judicial notice of certain court records. These requests for judicial notice are GRANTED. (Evid. Code § 452, subd. (d).) Defendant also requests judicial notice of the requirement regarding continuous permanent residence. As will be discussed below, the Court did not rely on this information in its ruling. Accordingly, the Court declines to take judicial notice of this requirement.

Defendant makes a threshold showing that the complaint arises from protected activity

“In order for a complaint to be within the anti-SLAPP statute, the critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity.” (Central Valley Hospitalists v. Dignity Health (2018) 19 Cal.App.5th 203, 217, citing Navellier v. Sletten (2002) 29 Cal.4th 82, 89; see also D’Arrigo Bros. of California v. United Farmworkers of America (2014) 224 Cal.App.4th 790, 799 (stating that “[i]n the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity”).) “To make that determination, we look to the principal thrust or gravamen of the plaintiff’s cause of action.” (Central Valley Hospitalists, supra, 19 Cal.App.5th at p. 217, citing Martinez v. Metabolife International, Inc. (2003) 113 Cal.App.4th 181, 188; see also Optional Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP (2017) 18 Cal.App.5th 95, 111 (stating that “[i]n determining whether a cause of action is based on protected activity, we ‘examine the principal thrust or gravamen of a plaintiff’s cause of action to determine whether the anti-SLAPP statute applies’”; also stating that “[w]e assess the principal thrust by identifying ‘[t]he allegedly wrongful and injury-producing conduct … that provides the foundation for the claim’”); see also Mission Beverage Co. v. Pabst Brewing Co., LLC (2017) 15 Cal.App.5th 686, 698 (stating that “[w]hether a cause of action is itself based on protected activity turns on whether its ‘principal thrust or gravamen’ is protected activity—that is, whether the ‘core injury-producing conduct’ warranting relief under that cause of action is protected activity”); see also Daniel v. Wayans (2017) 8 Cal.App.5th 367, 380 (stating that “[i]n assessing whether a cause of action arises from protected activity, ‘we disregard the labeling of the claim [citation] and instead ‘examine the principal thrust or gravamen of a plaintiff’s cause of action’” (emphasis original); also stating that “[w]e assess the principal thrust by identifying ‘[t]he allegedly wrongful and injury-producing conduct … that provides the foundation for the claim’”); see also Wilson v. Cable News Network, Inc. (2016) 6 Cal.App.5th 822, 831 (stating that “[t]o determine whether a cause of action arises from protected activity, we disregard its label and instead examine its gravamen ‘by identifying ‘[t]he allegedly wrongful and injury-producing conduct … that provides the foundation for the claim’… i.e., ‘the acts on which liability is based,’ not the damage flowing from that conduct”).) “When evaluating whether the defendant has carried its burden under the first prong of the anti-SLAPP statute, ‘courts must be careful to distinguish allegations of conduct on which liability is to be based from allegations of motives for such conduct.’” (Daniel, supra, 8 Cal.App.5th 367, 380.) “Causes of action do not arise from motives; they arise from acts.” (Id., quoting People ex rel. Fire Ins. Exchange v. Anapol (2012) 211 Cal.App.4th 809, 823.) “The court reviews the parties’ pleadings, declarations and other supporting documents to determine what conduct is actually being challenged, not to determine whether the conduct is actionable.” (Id. at pp.380–381; see also Optional Capital, supra, 18 Cal.App.5th at pp. 111-112 (stating that “[i]n deciding whether the ‘arising from’ requirement is met, a court considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based’… [t]hus, we are ‘not limited to examining the allegations of the complaint alone but rather consider the pleadings and the factual material submitted in connection with the special motion to strike’”; also stating that “defendant’s burden on the first prong is not an onerous one… [t]he Legislature did not intend that in order to invoke the special motion to strike the defendant must first establish [his or] her actions are constitutionally protected under the First Amendment as a matter of law… Instead, under the statutory scheme, a court must generally presume the validity of the claimed constitutional right in the first step of the anti-SLAPP analysis, and then permit the parties to address the issue in the second step of the analysis, if necessary”), quoting Contreras v. Dowling (2016) 5 Cal.App.5th 394, 408; see also Karnazes v. Ares (2016) 244 Cal.App.4th 344, 353-354 (stating same, considering declaration attaching email to determine whether ‘arising from’ requirement was met); see also Navellier, supra, 29 Cal.4th at pp. 89-95 (examining declaration and documents, stating that “[i]n deciding whether the initial ‘arising from” requirement is met, a court considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based’… “[e]xamination of the relevant documents reveals that each of Sletten’s acts (or omissions) about which plaintiffs complain falls squarely within the plain language of the anti-SLAPP statute”).)

Here, it is clear that these causes of action are based on Defendant’s protected activity, as defined by section 425.16. The first cause of action for breach of contract alleges that “Defendant breached the Agreement by disclosing to Megyn Kelly on the Today Show that she believed she was a victim of domestic violence.” The second cause of action for breach of the covenant of good faith and fair dealing is dependent on the first cause of action. (See complaint, ¶¶ 26-27 (alleging that “[a]s set forth above, Defendant breached this covenant of good faith”).) The third and fourth causes of action are premised on the allegation that “Defendant falsely represented on the Today Show with Megyn Kelly, an internationally broadcast program, that Plaintiff was a domestic abuser and had committed acts of domestic violence upon Plaintiff [sic], which are illegal and criminal acts, and constitute the most egregious and intolerable accusations that could be made against someone.” (See complaint, ¶¶ 30, 41 (alleging the same), 31 (also alleging that “Defendant started a domestic violence abuse center and later went on national television representing that she was a survivor of domestic abuse… the nature of the show was to profile the most egregious instances of domestic abuse where the other guests had suffered the most extreme forms of violence from their husbands”).) The fifth cause of action for intentional infliction of emotional distress is premised on the other causes of action. (See complaint, ¶¶ 46-49.)

Defendant’s actual statements on the Today Show as reflected in the video and the transcript were:

• “I get two to three women calling me every day and unfortunately, many of them think they’re all alone.”
• “Because of the shame, the fear, the social stigma, many times women have not reached out to the police.”
• “Yes. You know the dynamics of power and control are the same. It doesn’t matter what economic area you come from, but the more money, the more power, the more influence you have, the easier it is to wield those… wield the power and control and coerce. And then you’ve got this image on the outside that you’re this fine, upstanding citizen, a pillar of the community. It’s almost like Dr. Jekyll and Mr. Hyde.”
• “Absolutely. It’s all about power and control and getting inside their head. And they can… there’s a term called “gaslighting” where you start to… you can manipulate and brainwash someone to the point where they think that they’re… they’re doubting their memory. Over a time, they’re doubting their sanity. And they start to doubt reality. And if you couple that with their partners’ attempt to prove that, or make all kinds of allegations that there’s something wrong with them, and they get more isolated over time, it’s very common for women to lose their friends, lose their own family members. Their own family members can be turned against them because they’re that powerful. These are successful, powerful people who are, in many cases, running companies, they’re doctors, lawyers, engineers. No one would ever guess they had that dark side. It’s about control in the end.”
• “Yes. So many of my ladies who have been through abusive relationships have tried couples counseling and unfortunately, a lot of therapists—there are some therapists who are very well versed in it, and it’s wonderful—but they don’t typically get a lot of education in domestic violence in this area. So they go there thinking that it’s a communication issue, or if they’re only more assertive, or what’s my role in it? And unfortunately, the abuser can create an alignment with the therapist so it becomes the two of them fixing her. And if she dares to say something about how he has hurt her, he’ll see that as a shame… something that’s shaming to him and punish her for it later. So inadvertently, it can end up colluding with the abuser.”
• “Safety planning never stops. It never stops because they are punitive and they are vengeful.”

The transcript and video of the show provided by Plaintiff demonstrate that Defendant did not actually discuss Plaintiff or her marriage. Thus, Plaintiff’s causes of action are apparently based on Defendant’s appearance on the Today Show where, according to the complaint, video and transcript, Defendant discussed the effects of domestic abuse and Defendant’s experiences with domestic abuse victims at the “domestic violence abuse center” that “Defendant started.” Additionally, Plaintiff’s causes of action are additionally based on statements made by nonparty Megyn Kelly, and captions run during the segment by the nonparty producer of The Today Show.

Although Defendant did not discuss Plaintiff or her marriage on the show, Plaintiff nevertheless believes that her conduct is not protected because: breaching a contract is not protected under the anti-SLAPP statute; the defamation causes of action “do does [sic] not seek to prevent Defendant from engaging in speech on the issues of domestic violence/abuse generally, or any other issue of public interest… [t]hese claims seek to remedy Defendants’ representations about private conduct; and, Defendant’s non-communicative acts and her failure to communicate and correct the Today show captions, or Ms. Kelly’s statements, were not acts in furtherance of any free speech right, and therefore not protected activity.” (Opposition, p. 16:8-15.)

Plaintiff’s blanket assertion that the alleged breaching of a contract is not protected under the anti-SLAPP statute is incorrect. (See Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 473(stating that “plaintiff’s understanding of the SLAPP law is erroneous, especially his bold statement that ‘breaching a contract is never a protected exercise of free speech or right of petition and hence cannot constitute a protected activity for anti-SLAPP purposes… well settled law is contrary”); see also Navellier, supra, 29 Cal.4th at p. 92 (stating that “conduct alleged to constitute breach of contract may also come within constitutionally protected speech or petitioning… [t] he anti-SLAPP statute’s definitional focus is not the form of the plaintiff’s cause of action but, rather, the defendant’s activity that gives rise to his or her asserted liability—and whether that activity constitutes protected speech”).) Moreover, as stated above, “[i]n assessing whether a cause of action arises from protected activity, ‘we disregard the labeling of the claim [citation] and instead ‘examine the principal thrust or gravamen of a plaintiff’s cause of action.’” (Daniel v. Wayans (2017) 8 Cal.App.5th 367, 380; see also Wilson v. Cable News Network, Inc. (2016) 6 Cal.App.5th 822, 831 (stating that “[t]o determine whether a cause of action arises from protected activity, we disregard its label and instead examine its gravamen ‘by identifying ‘[t]he allegedly wrongful and injury-producing conduct … that provides the foundation for the claim’… i.e., ‘the acts on which liability is based,’ not the damage flowing from that conduct”).)

As to Plaintiff’s assertion that the defamation causes of action “do not seek to prevent Defendant from engaging in speech on the issues of domestic violence/abuse generally,” the video and transcript do not support this assertion. The “injury producing conduct that provides foundation for the claim[s]” are that “Defendant falsely represented on the Today Show with Megyn Kelly” and that “Defendant breached the Agreement by disclosing to Megyn Kelly on the Today Show.” It is clear that the principal thrust or gravamen of Plaintiff’s causes of action are based on Defendant’s alleged representations and disclosures on the Today Show. As to Plaintiff’s contention that the alleged conduct was strictly “private conduct,” as previously noted, the evidence that Plaintiff provides—the video and the transcript—demonstrate that Defendant’s statements did not specifically comment on Plaintiff or the parties’ marriage. In fact, as stated above, Defendant’s statements were about the effects of domestic violence and her experiences with domestic violence abuse victims in her capacity as the founder of the domestic violence abuse center, WomenSV.

It is established that “[d]omestic violence is an extremely important public issue in our society.” (Sipple v. Foundation For Nat. Progress (1999) 71 Cal.App.4th 226, 238-240 (finding that an article regarding domestic violence was subject to the protection of section 425.16, despite the appellant’s contention that “wife-beating is not an issue of public interest”; also noting that “[t]he article’s theme that rich and powerful men may use the legal system to their advantage over women who may have been abused by them is further exposition on the same issue of domestic violence”).) Defendant’s statements on the Today Show are protected activity pursuant to section 425.16, subdivisions (e)(3) and/or (4).

Lastly, as to Defendant’s non-communicative acts and her failure to communicate and correct the Today show captions, or Ms. Kelly’s statements, these would neither support a defamation cause of action nor the alleged breach of contract cause of action. The Personal Conduct Contract prohibited Defendant’s statements regarding her being a victim of domestic violence, not others from making such statements. Defamation requires the defendant to make a false and unprivileged publication. (See Civ. Code §§ 45, 46.) Here, neither Ms. Kelly nor the Today Show are parties to the action, and are not alleged to have conspired with Defendant to make false and unprivileged publications. Moreover, even if these causes of actions involved nonprotected activities, the gravamen of the causes of action are based on Defendant’s statements on the Today Show, and those statements are not incidental to the causes of action. (See Salma v. Capon (2008) 161 Cal.App.4th 1275, 1287–1288 (stating that “[a] mixed cause of action is subject to section 425.16 if at least one of the underlying acts is protected conduct, unless the allegations of protected conduct are merely incidental to the unprotected activity”; also stating that “[a] plaintiff cannot frustrate the purposes of the [anti-]SLAPP statute through a pleading tactic of combining allegations of protected and nonprotected activity under the label of one ‘cause of action’”), citing Peregrine Funding, Inc. v. Sheppard Mullin Richter Hampton LLP (2005) 133 Cal.App.4th 658, 672, and Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 308; see also City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 767 (stating that “[w]hen a cross-complainant presents a mixed cause of action that involves protected and nonprotected activities… the question presented is ‘whether the gravamen of the cause of action targets protected activity’… the question is whether the protected activity is merely an incidental part of the cause of action”), quoting Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1550.) Defendant has made a threshold showing that the challenged causes of action arise from protected activity. The Court thus turns to whether Plaintiff has demonstrated a probability of prevailing on the claim. (Equilon Enterprises, LLC, supra, 29 Cal.4th at p. 67.)

The first and second causes of action

Plaintiff asserts that the Personal Conduct Contract (PCC) required that Defendant “not disclose to anyone… the allegations of her domestic violence restraining order petition… [or] that she believes she was a victim of domestic violence.” (Opposition, p.19:19-27.) Plaintiff asserts that “[t]he disclosures Defendant made on April 9, 2018 and every day thereafter, including the disclosure of placing her dismissed DVRO application into the public court file and re-alleging her claims in a declaration October 22, 2018, were all made while Plaintiff’s citizenship was pending. These acts constituted breaches of the PCC.” (Opposition, p.19:10-14.) Plaintiff also contends that “Defendant started publicly talking about the effects of domestic violence on her long before the five year minimum had elapsed, in a series of news articles in Los Altos Town Crier. She held seminars and made a living off of the implied allegations that she backed away from in order to settle her divorce.” (Opposition, p.19:15-18.)

It is well established that the defendant’s breach is an element for a breach of contract cause of action. (See Acoustics, Inc. v. Trepte Construction Co. (1971) 14 Cal.App.3d 887, 913 (stating elements for breach of contract cause of action).) Here, the first and second causes of action allege that “Defendant breached the Agreement by disclosing to Megyn Kelly on the Today Show that she believed she was a victim of domestic violence.” Whether Defendant breached the PCC previously in a series of news articles or during seminars is outside the allegations of these causes of action, and thus irrelevant for the purposes of the special motion to strike. (See Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1263 (regarding the plaintiff’s additional false statements asserted in her opposition papers, stating “whatever possible merit that claim may have, Jackson failed to include it in her complaint… [o]n review of a special motion to strike pursuant to section 425.16, we must take the complaint as it is… [n]or can Jackson amend her complaint to cure this deficiency: ‘A plaintiff cannot avoid [an anti-]SLAPP motion by amending the complaint’”).) As to placing her DVRO application into the court file, this too is not alleged by the instant complaint. Nevertheless, even if it were, such disclosure would plainly be protected by the litigation privilege.

Lastly, as to “disclosures Defendant made on April 9, 2018” “on the Today Show” to Megyn Kelly, Plaintiff presents: a stipulation and order regarding dismissal of Domestic Violence Restraining Order; a request for dismissal in the divorce action; a stipulation and order re: interpretation of personal conduct contract; Plaintiff’s declaration; the declaration of Fabio DeAmicis; the declaration of Plaintiff’s anonymous girlfriend who uses and signs the declaration under the alias Jane Doe; and, the declaration of Plaintiff’s counsel, who attaches the video, the transcript, an unauthenticated email between Plaintiff’s counsel and a person named Alan Eaton, a NAMI Family-to-Family Participant Manual 2014, and a handout entitled Domestic Violence Update (per CA ROC 5.230). The purpose of the latter declaration with regards to the handout and the NAMI Participant Manual is to dispute Defendant’s credibility of her domestic violence allegations. (See Fox decl., ¶¶ 5-7.) The Eaton email, and the Doe and DeAmicis declarations are also offered in support of Plaintiff’s assertion that he is not violent. (See Fox decl., exh. C (stating “I have never seen Ron exhibit violent behavior toward anyone, even in those highly-stressful situations”); see also DeAmicis decl., ¶¶ 4-5 (stating that “Ron is a generous and fair-minded boss… [h]e’s never been violent to me or anyone I know”).)

However, none of Plaintiff’s evidence, including Plaintiff’s declaration, demonstrates that Defendant made any disclosures to Megyn Kelly or the Today Show. Instead, Plaintiff merely states that “I believe Ruth will continue to make false statements portraying herself as having endured domestic violence and abuse perpetrated by me, by implication or explicitly, unless she has a financial reason to stop.” (Pl.’s decl. in opposition to special motion to strike, ¶ 43.) Plaintiff also states that he “googled ‘Megyn Kelly Ruth Patrick’… [and] clicked on the first video… where it says, ‘3 women who endured domestic violence abuse tell Megyn Kelly their stories’ and, ‘[o]n a special episode of Megyn Kelly TODAY focusing on domestic abuse, Megyn welcomes Ruth Patrick, Sandy Harvey and Sally Davies, who share their harrowing stories.’” (Id. at ¶ 44.) “The two other women tell horrific stories of abuse by their husbands or ex-husbands, so I am grouped with a husband who killed his son and then himself and another husband who tormented his wife.” (Id.) “I believe the implication by Ruth’s representations on the Today Show that I was the perpetrator of these crimes is unmistakable.” (Id.) Again, however, Plaintiff does not support the alleged breach of the PCC—that “Defendant disclos[ed]to Megyn Kelly on the Today Show that she believed she was a victim of domestic violence.” Plaintiff does not demonstrate a probability of prevailing on his breach of contract and dependent breach of the implied covenant of good faith and fair dealing causes of action. (See Acoustics, Inc., supra, 14 Cal.App.3d at p. 913.)

As Plaintiff has failed to demonstrate a probability of prevailing on his breach of contract and dependent breach of the implied covenant of good faith and fair dealing causes of action, it is unnecessary to address the issue regarding the applicability of the PCC and Plaintiff’s citizenship application status.

The third through fifth causes of action for defamation, false light, and intentional infliction of emotional distress

As Plaintiff states, “[d]efamation is an invasion of the interest in reputation… [a]nd involves the intentional publication of a statement of fact that is false, unprivileged, and has a natural tendency to injure or which causes special damage.” (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645.) “A ‘false light’ cause of action is in substance equivalent to a libel claim, and should meet the same requirements of the libel claim, including proof of malice [where malice is required for the libel claim].” (Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1264.) “Indeed, ‘[w]hen 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.’” (Id., citing Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1385, fn. 13.) “A cause of action for intentional infliction of emotional distress exists when there has been (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff has suffered severe or extreme emotional distress; and (3) the defendant’s outrageous conduct was the actual and proximate causation of the emotional distress.” (Id., citing Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.) “Liability for intentional infliction of emotional distress ‘does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.’” (Id.) “With respect to the requirement that a plaintiff show severe emotional distress, [the Supreme Court] has set a high bar.” (Id., citing Hughes, supra, 46 Cal.4th at p. 1051.)

As previously stated, the complaint alleges that “Defendant falsely represented on the Today Show with Megyn Kelly, an internationally broadcast program, that Plaintiff was a domestic abuser and had committed acts of domestic violence upon Plaintiff [sic], which are illegal and criminal acts, and constitute the most egregious and intolerable accusations that could be made against someone. These statements were and are not true.” (Complaint, ¶¶ 30, 41 (alleging that “[t]hese statements and representations cast Plaintiff into a false light that was highly offensive to a reasonable person”), 46-49 (referring to “Defendant’s actions” as basis for cause of action); see also Opposition, pp.21:4-18, 22:1-23, 23:1-27, 24:1-3 (stating that “[t]his same evidence also constitutes a prima facie showing of False Light Invasion of Privacy, in that Defendant’s representations placed Plaintiff before the public in a false light that would be highly offensive to a reasonable person”; also stating that “Plaintiff has submitted evidence Defendant disregarded the established probability that her outrageous conduct would cause Plaintiff severe emotional distress, which it did”(citing Pl.’s decl., ¶¶ 43, 45).)

As previously stated, Plaintiff submits several declarations, including his own and his attorney’s. In his opposition, Plaintiff asserts that his declaration “shows that Defendants made numerous statements to third parties, including representations on the Today Show, and presumably to the Today Show staff, which circumstances indicate she authorized or intended to be repeated on the show.” (Opposition, pp.22:18-23, 23:1-2 and 24-27, 24:1-3, all citing to Pl.’s decl., ¶¶ 39, 40, 42-45.) However, as with the breach of contract cause of action, none of Plaintiff’s evidence—including his declaration—support his allegation that Defendant made false representations on the Today Show. Plaintiff’s declaration—and the remainder of Plaintiff’s evidence—also do not address his assertion that Defendant made false representations to the Today Show staff. Plaintiff’s proffered evidence also does not support the allegation that she specifically acknowledged that she was a survivor of domestic abuse. Instead, the video provided by Plaintiff shows that Ms. Kelly stated to Plaintiff that “I know you too are a survivor of domestic abuse.” Contrary to Plaintiff’s allegation, Defendant did not “nod her head in agreement” at this point. Instead, Ms. Kelly continued: “And you formed this amazing group for women who felt too isolated to reach out to anybody. There’s almost a stigma because they’re supposed to be able to manage it.” It is not until the phrase “reach out to anybody” regarding the domestic violence support group that Defendant nods her head. A reasonable person would not believe that Defendant is acknowledging that she was a survivor of domestic abuse by nodding at a different phrase about a different subject. Plaintiff thus likewise does not demonstrate a probability of prevailing on his remaining causes of action. (See Grenier v. Taylor (2015) 234 Cal.App.4th 471, 486 (stating that “to state a defamation claim, the plaintiff must present evidence of a statement of fact that is provably false”); see also Jackson, supra, 10 Cal.App.5th at p. 1264.)

Defendant’s special motion to strike the complaint is GRANTED as to all causes of action of the complaint.

Plaintiff has objected to certain evidence in support of Defendant’s special motion to strike. The Court did not rely on the evidence that are the subject of objections numbers 1-10, 18-21. Plaintiff’s objections numbers 11-17 are OVERRULED.

The Court did not rely on Defendant’s objections to Plaintiff’s evidence in its ruling.

The Court will prepare the Order.