business despite the circumstances there's any problems hearing the other technical difficulties please let me know you were here i think you very much think you were here in this defamation case following the district court granting this read court knows now exists a robust circuit split on the application of the state and its last statutes in federal court concerning whether they conflict with the comprehensive scheme embodied by the federal rules pursuant to shady grove the district court in this case followed the th circuit though did so without analyzing the shady grove problem instead as the th circuit does it simply rewrote the claim language of the n t slap statutes probability of acquiring and supplanted it with the federal rules legislature wanted a rule twelve standard for granted which entitles a defendant to attorneys to use it could have written one in and it didn't shady grove also deals with this problem a lot of rejecting the dissenting opinion in that case specifically stated and i'm quoting the manner in which the law could have been written has no bearing what matters is the law the legislature didn't act and cannot rewrite that to reflect our perception of legislative purpose sense concern for state prerogatives frustrated rather than furthered by revising state laws where potential conflict with the federal rule arises the state friendly approach would be to accept the laws written in test the validity of the federal rule and i want to be clear about this because both actually all three misread the amaechi and the district court appointed to this court's prior two thousand and fourteen decision and adelson supported correct application of california's any slack here plain from the liberty synergistic in its decisions that this issue has not been decided i want to stress that the adults in court was not confronted with the shady grove problem is considered in the vat of any slack statute that was in effect before two thousand decisions for at least two reasons st shady grove itself framed the question broadly in that case dealing with the new york statute that purported to limit the availability of the other side of the circuits play we know the th circuit in the st circuiting goeden have framed a much more narrow question focusing primarily on what they call a special purpose and the any statute and holding that it answers a more specific question twelve when a complaint is based upon the defendant's freedom of speech or petition in conduct and that the federal rules you're exposed explicitly provide for that but carbone ian clock as well as shady grove and consider these issues and rejected them and based on their reasoning i would submit that isn't as important as the manner in which the question is framed is the standard by which a possible conflict should be judged and quoting from clock and carbon and applying screen court decision walker but the test of whether a conflict between the federal rules and a state statute exists is not it is not whether it is logically possible for a court to comply with the requirements of whether the federal rules  question are sufficiently broad to control the issue before the court both car boni and shady grove explicitly rejected as as the court in the st circuit go now that a special purpose to stink from that of the relevant federal is sufficient to eliminate a conflict between the federal rules and state statute and i would submit that following this standard is the art is the rule twelve rules eight and twelve sufficiently broad to answer the question in disputes that under even the more know the district court here and they said apply the rule twelve the six plausibility standard or at least reported to rather than the probability standard on the face of the statute but even then the court should any slap and the clock tells us yes you have one more minute thank you and clock tells us the same under the plain language of the california any scrap statute it's only when the special motion to strike procedure and probabilit standard are used and granted that the defendant is entitled to his or her attorney's fees and costs if you look at the case is decided by cited by the need to put a general proposition that state statutes awarding attorneys fees are clickable you'll little rock and like with my remaining time like this briefly address another baby which under which district court would have  not a matter of whether someone is a limited public figure a question of state law rather than federal law because there  event what media appearances were there before it was before the publication it was after the publication that there was a television interview that she conducted of the local fox news station understand that there i don't think there's any question that that was what the newspaper reported that liberte was interacting with a fourteen year old so there was no discovery is that correct that's correct so isn't one possible solution and miss appeal to to remand to district then discovery would be appropriate but in this case there is absolutely no evidence or any evidence suggesting other mis read act it was actual now but there's there's no basis to believe that such an a document would it not something that would be done in the ordinary course of business for anything like that be what happened here was was w including the tweeting and we tweeting and all that ms really did was pick up on what had been reported all over social media about the ugliness that occurred at that council there is nothing to suggest any that there would be some sort of internal memo or that somehow were or consumed by discovery and i'm wondering whether there is and this is not a situation in which there are material issues of fact in dispute but let me hear fr much sure judge judge character asked the question about whether public figure is a matter of federal law and it is but even if it were not the california constitution mr richmond right the california constitution is different because the california supreme court has told us it was in fact contains a provision that subjects the media to liability for the abuse of free speech which the federal constitution does not for that reason has rejected any more expansive protection from defamation liability than the federal constitution there's also some question about when mrs levy barricades media appearances were her sole voluntary conduct prior to the accusations was her her civic duty and appearing at city council meeting and i don't think we we want our citizens to be weighing the benefits of participating as private citizens versus the risk of being libeled in the interview since the interview that was with fox was the same day as this read st accusations and they that interview  no more media access which her talks about than any any private citizen would expect to have when these types of accusations are made false accusations are made especially in the in the current political climate there's which i think the court would also benefit from discovery on that issue but even if she is a limited purpose publicly that she has alleged all of that type of circumstantial evidence that this circuit and the supreme court and the state of california tell us make out a plausible malice i think what the district court actually did here was decide for itself that it's plausible that mystery did not provide actual malice she never even addressed in her order didn't even attempt to address it in her order the accusations of the circumstantial evidence that mrs a lot of america has alleged to show a plausible case of actual malice in the discovery as judge a cafe i think rightfully pointed out there right now the black box and they reveal evidence of actual malice reed was somehow relying on anyone other than this stole a single teenaged political activist we need to know that we also need to know what went on on her own social media account between june th and july  what internal correspondence there may be predating and during this episode about misreads own hostility and bias against president trump and his supporters  we need to know what she did if anything to try to ascertain the truth of this given what we have alleged a purposeful avoidance of the truth by relying on one sole biased source  didn't do the things that she's accused of and i would point the court to the video that is incorporated into the amended complaint of the actual interaction nothing of the sort of occurred not only was there video evidence showing that this did not happen but we also know that mr reid did nothing to ascertain if it happened and changed what was being said about the event that somebody we don't know who somebody possibility of the existence of material issues of fact yes thank you there on the the the complaint what the complaint was was not that miss re now at the chiat internal memos not that there was any other evidence out there that it was a failure to investigate and cheney sat through cases state as a matter of law that the failure to investigate  and we'll reserve decision