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Filed 5/29/24 Medina v. Microsoft Corp. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

----

ANTONIO MEDINA,

Plaintiff and Appellant,

v.

MICROSOFT CORPORATION et al.,

Defendants and Respondents.

C098084

(Super. Ct. No. STK-CV-UD2021-0011122)

Pro per plaintiff and appellant Antonio Medina (Medina) sued defendant and 

respondent Microsoft Corporation (Microsoft) in a federal district court in 2014. 

Microsoft’s attorney in that matter (attorney) filed a motion for protective order that 

included statements about Medina’s background. The district court repeated the 

statements in its order partially granting the motion. The unredacted motion and the 

order have been available on websites operated by defendants and respondents Free Law 

Project, CaseText, Inc. (CaseText), and PacerMonitor, LLC (collectively, legal research 

defendants) since around 2014.
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In 2020, Medina obtained an order from the district court sealing a portion of the 

motion and the order. He sued Microsoft, attorney, legal research defendants

(collectively, moving defendants), and others for defamation, false advertising, and other 

related tort causes of action. The trial court granted moving defendants’ anti-SLAPP 

motions (SLAPP is an acronym for strategic lawsuit against public participation). 

On appeal, Medina contends: (1) the anti-SLAPP motions were moot because he 

amended his complaint and the trial court erred in striking the amended complaint; (2) in 

ruling on the anti-SLAPP motions, the trial court erred by judicially noticing the truth of 

hearsay statements in the district court’s sealing order; (3) his causes of action did not 

arise from protected activity; (4) moving defendants’ activities were not privileged; 

(5) legal research defendants did not enjoy immunity under section 230 of title 47 of the 

United States Code (section 230); (6) the false advertising cause of action was not subject 

to the anti-SLAPP statute; and (7) all his causes of action were supported by factual 

allegations. 

We find no error and affirm. All statutory references are to the Code of Civil 

Procedure unless otherwise indicated. 

FACTUAL AND PROCEDURAL BACKGROUND

In 2014, Medina sued Microsoft in a federal district court. Attorney made 

statements about Medina in her motion for a protective order that Medina contended to be 

false, defamatory, and irrelevant to the lawsuit. The district court repeated those

statements in its order partially granting the protective order. 

Legal research defendants operate websites that allow the public to search and 

access documents filed in court. The unredacted motion and order (the 2014 court 

documents) were available on those websites and the district court’s docket since around 

2014. 

In 2020, Medina obtained an order from the district court sealing a portion of the 

2014 court documents. But the district court denied Medina’s motion to strike on the 
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ground that it would not provide relief to Medina because publishers were not required to 

immediately withdraw the sealed material. 

In 2021, Medina sued moving defendants, Google NA Inc. (Google), and others. 

He filed a first amended complaint in May 2022 for defamation, libel, false advertising in 

violation of Business and Professions Code section 17500, false light, publication of 

private facts, intentional misrepresentation, and intentional infliction of emotional 

distress, all based on the statements in the 2014 court documents. Free Law Project, 

CaseText, and Google demurred to the first amended complaint. Moving defendants also 

filed anti-SLAPP motions to strike the first amended complaint. 

On November 29, 2022, the trial court sustained Google’s demurrer to the first 

amended complaint with leave to amend only as to Google but at Medina’s request 

continued the hearing on moving defendants’ anti-SLAPP motions to February 2023. In

December 2022, Medina filed a second amended complaint (the December 2022 

complaint). 

After the hearing on the anti-SLAPP motions, and in the wake of the December 22 

complaint filing, the trial court issued a “corrected and clarifying ruling” on February 27, 

2023, explaining that the time for leave to amend as against Google would not begin to 

run until after an order on the anti-SLAPP motions was issued. The trial court then 

struck the December 2022 complaint on its own motion. 

On March 1, 2023, the trial court granted the anti-SLAPP motions and dismissed 

the first amended complaint (the operative complaint) as to moving defendants with 

prejudice and without leave to amend. In light of its order on their anti-SLAPP motion, 

the trial court further found Free Law Project and CaseText’s demurrer moot. 

Medina appealed the trial court’s corrected and clarifying ruling and order striking 

the December 2022 complaint on March 3, 2023, and appealed the orders granting the 

anti-SLAPP motions on March 7, 2023. We dismissed Medina’s March 3, 2023 appeal. 
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Therefore, this opinion considers only the March 7, 2023 appeal from the orders granting 

the anti-SLAPP motions. 

On March 16, 2023, Medina filed another second amended complaint against all

defendants (the March 2023 complaint). Moving defendants filed a joint special motion

to strike the March 2023 complaint as procedurally improper. 

DISCUSSION1

I

The Amended Complaints

As a preliminary matter, we address the legal effects of the December 2022 

complaint and the March 2023 complaint. 

Medina contends the anti-SLAPP motions became moot after he filed the 

December 2022 complaint. But “there is no express or implied right in [section] 425.16 

to amend a pleading to avoid a SLAPP motion.” (Sylmar Air Conditioning v. Pueblo 

Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1055; see Navellier v. Sletten 

(2003) 106 Cal.App.4th 763, 772 [“a plaintiff cannot use an eleventh-hour amendment to 

plead around a motion to strike under the anti-SLAPP statute”].) Therefore, the 

December 2022 complaint, filed before the hearing on the anti-SLAPP motions, did not 

supersede the operative complaint or render the motions moot. The trial court properly 

considered the anti-SLAPP motions. 

To the extent Medina contends the trial court erred in striking his December 2022 

complaint and in sustaining Google’s demurrer with conditions, the relevant appeal has 

been dismissed and we do not address this contention. 

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 Medina’s motion to seal filed January 17, 2024, is denied because the information cited 

in the respondents’ brief is publicly available and repeated in Medina’s publicly filed 

opening brief. (Cal. Rules of Court, rule 8.46(g) [prohibits disclosure of nonpublic 

material].) Accordingly, Medina’s motion for sanctions filed January 17, 2024, is also 

denied. 
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Finally, Medina appears to contend we should consider the March 2023 complaint 

in assessing the anti-SLAPP motions on this appeal. Not so. The March 2023 complaint, 

filed after the trial court granted the anti-SLAPP motions and struck the operative 

complaint as to moving defendants, was improper and did not supersede the operative 

complaint. “[A] plaintiff whose complaint is stricken by a successful anti-SLAPP motion 

cannot try again with an amended complaint. There is no such thing as granting an antiSLAPP motion with leave to amend.” (Dickinson v. Cosby (2017) 17 Cal.App.5th 655, 

676.) Medina erroneously believes he had leave to amend the complaint as to moving 

defendants when the trial court explicitly granted the anti-SLAPP motions without leave 

to amend. The record is clear that the leave to amend was limited to Medina’s causes of 

action against Google. Accordingly, we need not consider Medina’s contention that the 

trial court had discretion to grant the anti-SLAPP motions with leave to amend. 

II

Standing

We begin with Medina’s standing to bring the false advertising cause of action. 

“A lack of standing is a jurisdictional defect to an action that mandates dismissal.” 

(Cummings v. Stanley (2009) 177 Cal.App.4th 493, 501.) “Lack of standing is not 

waived by the failure to raise it in the trial court; it may be raised at any point in the 

proceedings.” (Killian v. Millard (1991) 228 Cal.App.3d 1601, 1605.) “Moreover, as the 

question of jurisdiction is always fundamental [citation], ‘a court has inherent power to 

inquire into jurisdiction of its own motion, regardless of whether the question is raised by 

the litigants. [Citations.]’ ” (In re Estevez (2008) 165 Cal.App.4th 1445, 1458; see Olson 

v. Cory (1983) 35 Cal.3d 390, 398 [“since the question of appealability goes to our 

jurisdiction, we are dutybound to consider it on our own motion”].) 

To establish standing under the false advertising law, a plaintiff must: 

“(1) establish a loss or deprivation of money or property sufficient to qualify as injury in 

fact, i.e., economic injury, and (2) show that the economic injury was the result of, i.e., 
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caused by, the . . . false advertising that is the gravamen of the claim.” (Kwikset Corp. v. 

Superior Court (2011) 51 Cal.4th 310, 322.) The phrase “as a result of” “imposes an 

actual reliance requirement” on plaintiffs where an unlawful competition law action is 

based on a fraud theory involving false advertising. (In re Tobacco II Cases (2009) 

46 Cal.4th 298, 325, fn. 17, 326; see Bus. & Prof. Code, § 17200 [unfair competition 

includes any “unlawful, unfair or fraudulent business act or practice and unfair, 

deceptive, untrue or misleading advertising and any act prohibited by . . . Section 

17500”].) This actual reliance requirement was later extended to unfair competition law 

actions predicated on misrepresentation and deception. (Durell v. Sharp Healthcare 

(2010) 183 Cal.App.4th 1350, 1363; Kwikset, at p. 327 [citing Durell in approval].) 

Here, Medina’s false advertising cause of action was predicated on the theories of 

fraud and misrepresentation. The operative complaint alleged legal research defendants 

“misrepresented in their advertising that documents that they offered on their websites 

were accurate copies of public records and the originals were available directly from the 

courts” when in reality they obtained the documents from third parties, altered, and 

selectively published these documents for their own profits. Among these documents

were the 2014 court documents. As a result, legal research defendants “deprived 

[Medina] of his good name and reputation.” But Medina’s loss of good name and 

reputation was a result of the dissemination of the allegedly defamatory statements in the 

2014 court documents. The operative complaint did not allege that Medina actually 

relied on legal research defendants’ advertisement to his detriment. Thus, Medina lacks 

standing to bring a false advertising cause of action against legal research defendants. 

We accordingly do not address Medina’s contention that the false advertising cause of 

action was exempted from the anti-SLAPP statute under section 425.17, subdivision (c). 
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III

The Anti-SLAPP Motions

“A SLAPP suit . . . seeks to chill or punish a party’s exercise of constitutional 

rights to free speech.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055.) Section 

425.16, or the anti-SLAPP statute, provides “a procedural remedy to dispose of lawsuits 

that are brought to chill the valid exercise of constitutional rights.” (Rusheen v. Cohen, at 

pp. 1055-1056.) Under the anti-SLAPP statute, “[a] cause of action against a person 

arising from any act of that person in furtherance of the person’s right of petition or free 

speech under the United States Constitution or the California Constitution in connection 

with a public issue shall be subject to a special motion to strike, unless the court 

determines that the plaintiff has established that there is a probability that the plaintiff 

will prevail on the claim.” (§ 425.16, subd. (b)(1).) 

“In evaluating an anti-SLAPP motion, the trial court first determines whether the 

defendant has made a threshold showing that the challenged cause of action arises from 

protected activity.” (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1056.) Once the 

defendant has made the prima facie showing, “the burden shifts to the plaintiff to 

demonstrate that each challenged claim based on protected activity is legally sufficient 

and factually substantiated.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 396.) “In making its 

determination, the court shall consider the pleadings, and supporting and opposing 

affidavits stating the facts upon which the liability or defense is based.” (§ 425.16, subd. 

(b)(2).) 

“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.” (Navellier v. Sletten (2002) 

29 Cal.4th 82, 89.) “We review an order granting or denying a motion to strike under 

section 425.16 de novo.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 

820.) 
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A. Protected Activity

In deciding whether a plaintiff’s claims arise from protected activity, we first 

“ ‘consider the elements of the challenged claim and what actions by the defendant 

supply those elements and consequently form the basis for liability.’ [Citation.] The 

defendant’s burden is to identify what acts each challenged claim rests on and to show 

how those acts are protected under a statutorily defined category of protected activity.” 

(Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009.) “[W]hatever the 

purported ‘target’ of a cause of action, if protected speech activity supplies an element of 

the claim, the burden shifts to the plaintiff to demonstrate a reasonable probability of 

prevailing on the merits.” (Musero v. Creative Artists Agency, LLC (2021) 

72 Cal.App.5th 802, 819.) 

Under the anti-SLAPP statute, an “act in furtherance of a person’s right of petition 

or free speech under the United States or California Constitution in connection with a 

public issue” includes written statements or writings made “before a . . . judicial 

proceeding” or “in connection with an issue under consideration or review by a . . . 

judicial body.” (§ 425.16, subds. (e)(1) & (2).) “Under the plain language of section 

425.16, subdivision (e)(1) and (2), as well as the case law interpreting those provisions, 

all communicative acts performed by attorneys as part of their representation of a client 

in a judicial proceeding . . . are per se protected as petitioning activity by the anti-SLAPP 

statute.” (Cabral v. Martins (2009) 177 Cal.App.4th 471, 479-480.) 

Here, the statements made by attorney in the 2014 court documents as part of her 

representation of Microsoft in the federal action were per se protected. The making and 

publication of these statements also supply at least one element in each of Medina’s 

causes of action for defamation, libel, false light, publication of private facts, intentional 

misrepresentation, and intentional infliction of emotional distress because the operative 

complaint alleged: (1) moving defendants defamed him by maliciously publishing the 

statements knowing they were false; (2) legal research defendants’ publication of the 
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statements were libelous; (3) moving defendants painted him in a false light by making 

and publishing the statements; (4) moving defendants publicly disclosed the statements 

containing private facts about him that would be highly offensive to a reasonable person; 

(5) legal research defendants misrepresented to him that they would remove the 

statements from their website and, in reliance on the representation, he delayed taking 

legal action, causing damage to his reputation and livelihood; (6) moving defendants 

intentionally inflicted emotional damage on him by knowingly publishing the statements. 

Medina contends he does not challenge the statements in the 2014 court 

documents; rather, his causes of action arose from moving defendants’ out of court 

disclosure of sealed court documents, and false statements that public records contained

information about his background. This is a distinction without a difference. Regardless 

of how they were disclosed, the statements that Medina claims to be defamatory and 

caused him damage were the statements contained in the 2014 court documents. 

Because Medina’s tort causes of action arose from protected activity, we next 

decide whether Medina demonstrated a probability of prevailing on those causes of 

action. 

B. Probability of Prevailing

To establish a probability of prevailing, a 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.’ ” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) But 

there is no probability of prevailing if the plaintiff’s claims are legally barred, such as by 

the litigation privilege or section 230. (See, e.g., Digerati Holdings, LLC v. Young 

Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 888 [“A plaintiff cannot 

establish a probability of prevailing if the litigation privilege precludes the defendant’s 

liability on the claim”]; Barrett v. Rosenthal (2006) 40 Cal.4th 33, 39-41 [upholding the 
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trial court’s grant of anti-SLAPP motion because section 230 barred the plaintiff’s 

claim].) We now examine the litigation privilege and section 230. 

1. Litigation privilege

The litigation privilege is codified in Civil Code section 47, subdivision (b) and 

bars “subsequent derivative actions based on the statements of witnesses, attorneys or 

parties during litigation.” (Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 

15, 30.) It is an absolute privilege and precludes all tort causes of action except a claim 

for malicious prosecution. (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 

360.) “ ‘The principal purpose of [the litigation privilege] is to afford litigants and 

witnesses [citation] the utmost freedom of access to the courts without fear of being 

harassed subsequently by derivative tort actions.’ ” (Action Apartment Assn., Inc. v. City 

of Santa Monica (2007) 41 Cal.4th 1232, 1241.) “In order to achieve this purpose of 

curtailing derivative lawsuits, we have given the litigation privilege a broad 

interpretation.” (Ibid.) 

Here, the 2014 court documents contained statements made in the federal district 

court action by attorney, as part of her representation of Microsoft, for a protective order 

to facilitate discovery in that action. These statements are classic communications

protected by the litigation privilege. 

Medina contends the litigation privilege does not apply because his suit was based 

on attorney’s disclosure of the 2014 court documents in violation of the district court’s 

sealing order. This again is a distinction without difference. He was harmed not because 

of the disclosure itself, but because of what was disclosed — the statements in the 2014 

court documents. Therefore, the litigation privilege bars Medina’s tort causes of action 

derivative from attorney and Microsoft’s statements made during litigation. 

Having concluded the litigation privilege applies to Microsoft and attorney, we 

need not decide whether any other privilege also applies to them. 
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2. Section 230

Section 230 bars “lawsuits seeking to hold [an interactive computer] service 

provider liable for its exercise of a publisher’s traditional editorial functions — such as 

deciding whether to publish, withdraw, postpone or alter content” originated from third 

parties. (Zeran v. America Online, Inc. (4th Cir. 1997) 129 F.3d 327, 330; Barrett v. 

Rosenthal, supra, 40 Cal.4th at p. 48 [following Zeran].) A plaintiff cannot circumvent 

section 230 by creative pleading. (Kimzey v. Yelp! Inc. (9th Cir. 2016) 836 F.3d 1263, 

1266.) For example, in Hassell v. Bird (2018) 5 Cal.5th 522 (plur. opn.), the plaintiff 

obtained an order in the trial court requiring Yelp to remove certain reviews even though 

Yelp was not a party to the lawsuit.2 (Id. at pp. 529-530.) Yelp moved to set aside and 

vacate the judgment on the ground that the order was barred by section 230 to the extent 

it required Yelp to remove postings. (Hassell, at pp. 530-531.) Our Supreme Court 

agreed with Yelp, concluding section 230 applied because “Yelp [was] being held to 

account for nothing more than its ongoing decision to publish the challenged reviews.” 

(Hassell,. at p. 542.) 

“[A]n interactive computer service provider only has immunity if it is not also 

the information content provider — that is, someone ‘responsible, in whole or in part, for 

the creation or development’ of the content at issue.” (Liapes v. Facebook, Inc. (2023) 

95 Cal.App.5th 910, 928, citing § 230(f)(3).) A website becomes an “information content 

provider” when it “contributes materially to the alleged illegality of the conduct.” (Fair 

Housing Coun., San Fernando Valley v. Roommates.Com (9th Cir. 2008) 521 F.3d 1157, 

1165-1168.) In Roommates, the Ninth Circuit found a website responsible for the alleged 

discrimination by requiring users to submit personal preferences and characteristics and 

2

 Although Hassell was a plurality opinion, Justice Kruger, concurring in the judgment, 

agreed with the plurality’s analysis of section 230. (Hassell v. Bird, supra, 5 Cal.5th at 

pp. 548, 558-559 (conc. opn. of Kruger, J.).) 
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designing a search system to steer users based on those preferences and characteristics. 

(Ibid.) 

Here, Medina does not dispute that legal research defendants are interactive 

computer service providers. The operative complaint further admits “Microsoft and 

[attorney] are the original publishers of” the 2014 court documents. This is a binding 

judicial admission. (Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 187.) Accordingly, 

section 230 bars Medina’s causes of action against legal research defendants. (See 

Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 830 [“section 230 . . . immunizes 

providers of interactive computer services . . . from causes of action asserted by persons 

alleging harm caused by content provided by a third party”].) 

We reject Medina’s contention that legal research defendants fall outside 

section 230 because they became information content providers when they removed the 

redaction in the 2014 court documents and published the unredacted version. Medina 

ultimately contends the sealing order required legal research defendants to remove 

allegedly defamatory statements from the 2014 court documents, thus seeking to hold 

them responsible for their editorial decisions to publish those statements. (See Hassell v. 

Bird, supra, 5 Cal.5th at p. 542.) But the district court explicitly declined to require 

publishers to retract the 2014 court documents in its sealing order. (See Hassell, at p. 542 

[“an order that treats an Internet intermediary ‘as the publisher or speaker of any 

information provided by another information content provider’ nevertheless falls within 

the parameters of section 230(c)(1)”; Kilroy v. State of California (2004) 

119 Cal.App.4th 140, 145 [courts can take judicial notice of the truth of results reached in 

a court file].) Moreover, we cannot conclude that legal research defendants materially 

contributed to the defamatory statements simply because they selected them for 

publication or decided not to remove the statements. (Jones v. Dirty World 

Entertainment Recordings LLC (6th Cir. 2014) 755 F.3d 398, 415-416.) To the extent 

Medina contends in his statement of facts that legal research defendants improperly 
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added additional information to the court files, we disregard this argument because it is 

unsupported by cogent argument or legal authority and is not stated under a separate 

heading or subheading. (Cal. Rules of Court, rule 8.204(a)(1)(B); People v. Lombardo 

(2020) 54 Cal.App.5th 553, 565, fn. 6; City of Santa Maria v. Adam (2012)

211 Cal.App.4th 266, 287 [“we may disregard conclusory arguments that are not 

supported by pertinent legal authority”].) 

IV

Request for Judicial Notice

Medina contends the trial court erred in judicially noticing court filings, 

considering hearsay statements in documents it judicially noticed, and he challenges 

moving defendants’ request for judicial notice accompanying their special motion to 

strike his March 2023 complaint. We decline to consider the last claim because it is not 

properly before us. (See County of Los Angeles v. Glendora Redevelopment Project 

(2010) 185 Cal.App.4th 817, 830 [“when reviewing the correctness of a trial court’s 

judgment, an appellate court will consider only matters which were part of the record at 

the time the judgment was entered”].) The other claims lack merit.

In its order granting Free Law Project and CaseText’s anti-SLAPP motion, the 

trial court also granted their request to take judicial notice of the district court’s sealing 

order. This was proper because the sealing order was relevant to prove Medina’s claim 

that the 2014 court documents were sealed. (Evid. Code, §§ 452, subd. (d), 453.) 

The trial court also noted in the order that Medina’s declaration in support of his 

opposition to the anti-SLAPP motion contradicted the statements in the sealing order. In 

doing so, the trial court committed no error because it did not accept the truth of any 

statements in the sealing order, but merely noted they were inconsistent with statements 

in Medina’s declaration.
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DISPOSITION

The trial court’s orders granting the anti-SLAPP motions are affirmed. Moving 

defendants shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

 /s/

MESIWALA, J.

We concur:

 /s/

ROBIE, Acting P. J.

 /s/

KRAUSE, J.