Filed 10/3/22 Zeidenfeld v. Stetler CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

ALVIN ZEIDENFELD,

Plaintiff and Respondent,

v.

DAVID STETLER et al.,

Defendants and Appellants.

 B308360

 (Los Angeles County

 Super. Ct. No. 20STCV02079)

APPEAL from an order of the Superior Court of 

Los Angeles County, Rupert A. Byrdsong, Judge. Affirmed in 

part and reversed in part.

Greenberg Traurig, Tyler R. Andrews and Bethany L. Rabe 

for Defendants and Appellants.

Klapach & Klapach, Joseph S. Klapach; Singh, Singh & 

Trauben and Thomas K. Richards for Plaintiff and Respondent.

____________________________
2

“Fantasy sports leagues allow participants to ‘manage’

virtual teams of professional players in a given sport throughout 

a sport’s season and to compete against other fantasy sports 

participants based upon the actual performance of those players 

in key statistical categories. Fantasy sports have become 

extremely popular in recent years. They have earned a place in 

modern popular culture and are the subject of countless 

newspaper and magazine articles, books, internet message 

boards and water-cooler conversations.” (Humphrey v. Viacom, 

Inc. (D.N.J. June 20, 2007, No. 06-2768 (DMC)) [2007 WL 

1797648, at p. *1].) This case involves statements made on 

Twitter about a prominent daily fantasy sports analyst, who 

describes himself as having the most followers of any daily 

fantasy sports analyst on Twitch and YouTube.

After plaintiff Alvin Zeidenfeld filed a complaint alleging 

two counts of per se defamation, defendants David Stetler and 

Fantasy Cruncher, Inc. (collectively defendants) filed a motion 

to dismiss pursuant to Code of Civil Procedure section 425.16.1 

Section 425.16, “[f]amiliarily known as the anti-SLAPP 

statute . . . allows defendants to seek early dismissal of 

unmeritorious claims arising from protected speech and 

petitioning activities.”

2 (Bonni v. St. Joseph Health System

(2021) 11 Cal.5th 995, 1004.) Defendants challenge the trial 

court’s order denying their anti-SLAPP motion.

1 Undesignated statutory citations are to the Code of Civil 

Procedure. 

2 SLAPP stands for “strategic lawsuit against public 

participation.” (Jackson v. Mayweather (2017) 10 Cal.App.5th 

1240, 1250, fn. 1 (Jackson).) 
3

We apply the required two-step framework in determining 

whether the trial court’s ruling was error. We agree with the 

trial court’s finding as to step one, to wit, that plaintiff’s 

defamation per se claims arise out of protected activity. 

Specifically, plaintiff’s defamation claims arise from speech in a 

public forum concerning an issue of public interest. (Clarity Co. 

Consulting, LLC v. Gabriel (2022) 77 Cal.App.5th 454, 462.) As to 

step two—whether plaintiff has established with admissible 

evidence, a “probability” of prevailing on his claims (Code Civ. 

Proc., § 425.16, subd. (b)(1)), or as our Supreme Court has 

summarized prong two, demonstrated that his claims have 

“ ‘ “minimal merit” ’ ” (Wilson v. Cable News Network, Inc. (2019) 

7 Cal.5th 871, 884 (Wilson))—we conclude plaintiff has satisfied 

his prong two burden only as to one of his defamation per se 

claims. The trial court thus erred in denying the anti-SLAPP 

motion as to both defamation per se claims, and we affirm in part 

and reverse in part the order denying defendants’ anti-SLAPP 

motion. 

BACKGROUND

Although the parties agree on very little, they appear to 

agree that plaintiff and defendants are involved in the daily 

fantasy sports (DFS) world, albeit in different contexts. 

According to plaintiff, DFS players build teams of professional 

athletes and compete against each other with scores based on the 

athletes’ performances in real-world competitions. Defendants 

objected to this statement as unqualified expert testimony, but 
4

offered a similar description of DFS.3 According to plaintiff, “[i]n 

the United States, the DFS industry is dominated by two 

competing services: the New York-based FanDuel, and the 

Boston-based DraftKings, each, upon information and belief with 

an estimated value of at least $15 billion.” (Italics omitted.) 

Plaintiff stated that DFS prize pools often reach millions of 

dollars.

Plaintiff describes himself as “a daily fantasy sports 

analyst and contributor and an online media personality 

professionally known as ‘Smizzle’ or ‘Smizz.’ ” He began working 

as an analyst in 2013. Plaintiff represents that currently, he 

“produce[s] DFS content across multiple platforms, including 

articles, podcasts, radio shows, and digital video and live 

television programming.” He provides “advice and commentary 

on how to win daily fantasy sports . . . .” Plaintiff boasts 50,000 

followers on his Twitter account. Plaintiff worked at ESPN and 

DraftKings, and then produced his own content. When he 

worked for ESPN, he appeared on a cable show. According to 

plaintiff, he has “the largest following/subscribers amongst any 

DFS content creator” on the streaming services YouTube and 

Twitch. 

Defendant Stetler describes himself and his company 

defendant, Fantasy Cruncher, Inc., as “well known figures in the 

often rough-and-tumble world of online daily fantasy sports 

(DFS).” According to defendants, they “often engage in jabs, 

barbs, or ‘smack-talking’ on social media with others in the DFS 

industry.” According to defendants, “Fantasy Cruncher, Inc. is a 

3 The trial court did not rule on the parties’ numerous 

evidentiary objections and the parties’ do not raise them on 

appeal. 
5

popular website and efficiency tool for DFS players.” It allows 

“frequent DFS players to create multiple optimal lineups for use 

on DFS operator sites . . . . ”

1. First amended complaint

Plaintiff’s first amended complaint, the operative pleading, 

alleges two causes of action. In his first cause of action for 

defamation per se, plaintiff alleged that using Fantasy 

Cruncher’s account, Stetler posted the following message on 

Twitter: “I get why you are soooo outraged. How did the lawsuit 

you had vs. your own wife turn out?” (We refer to this allegedly 

defamatory statement as the Lawsuit Statement.) The post was 

in response to plaintiff’s following statement: “Any personality or 

company who works with them after this round of awfulness will 

have a hard time washing that stink off them for the rest of the 

time they work in this industry. [¶] Choose your partners 

wisely.” The operative complaint does not identify “them” or “this 

round of awfulness.” According to defendants, Zeidenfeld posted 

the statement after Fantasy Cruncher’s tweet of “somewhat 

colorful thoughts about another competitor . . . .” Specifically, 

defendants believed the nonparty “should ‘jump[ ] off the 

Brooklyn bridge.’ ” In a subsequent tweet, Stetler described his 

position as follows: “Unpopular opinion: there are too many 

people in the world. Maybe some SHOULD kill themselves.”

In a second cause of action for defamation per se, plaintiff 

alleged that from Stetler’s personal account4, Stetler posted the 

following message on Twitter: “Guess not. Which isn’t the least 

4 No party distinguishes between Stetler’s and Fantasy 

Cruncher’s potential liability. We therefore treat the defendants 

as a collective unit for purposes of this appeal. 
6

bit surprising. Smizz is a total fraud and this is probably the 10th

lie he has told today. Fucking con man.” (We refer to this alleged 

defamatory statement as the Con Man Statement.) Although it is 

not alleged in the operative complaint, according to defendants, 

Stetler tweeted the above statement after plaintiff tweeted, 

“Good morning to everyone. Literally everyone, no exceptions.” 

According to defendants, Stetler initially responded, “Even me?”

and then wrote the challenged tweet underlying this second 

defamation cause of action.

Plaintiff alleges defendants’ statements were false and 

Stetler knew they were false or acted with reckless disregard as 

to their truth. Plaintiff further alleges a reader would 

understand the Con Man Statement to refer to plaintiff’s 

profession as a daily fantasy sports analyst and commentator.

2. Anti-SLAPP motion

Defendants filed a special motion to strike the complaint 

pursuant to section 425.16. Defendants argued that their speech 

is constitutionally protected and plaintiff could not demonstrate a 

probability of success on either defamation per se cause of action. 

Defendants asserted that the public is “undoubtedly interested”

in plaintiff. Defendants stated DFS was experiencing “booming 

popularity.” According to defendants, their “ ‘trash talk’ about 

Plaintiff in this type of environment is simply ‘rhetorical 

hyperbole,’ not actionable defamation.” 

In his declaration in support of the anti-SLAPP motion, 

Stetler averred that “it is very common in the DFS world for 

players and entities to engage in jabs, barbs, or ‘smack-talking’

with each other. People in the DFS community understand 

this, are used to seeing (if not engaging in) banter and trash-
7

talking . . . .” Stetler believes that “trash-talking” is “not take[n]”

“very seriously.” 

Stetler personally “dislike[s] the type of service and 

analysis offered by Smizz . . . .” Stetler, however, recognizes that 

plaintiff has “fans and followers and apparently does well for 

himself as a media personality and commentator.” According to 

Stetler, he and plaintiff have a “public feud.” Stetler claimed he 

believed that plaintiff was involved in litigation adverse to his 

wife because he obtained that information from a person who 

worked with plaintiff’s wife. Stetler thought his “obvious . . .

insult” that plaintiff was “a total fraud and this is probably the 

10th lie he has told today. Fucking con man” was “said in a 

joking, ‘smack-talking’ manner.” Stetler did not aver that he 

believed the Con Man Statement was true. 

3. Opposition to motion to dismiss

In opposing the anti-SLAPP motion, plaintiff argued the 

“statements do not implicate a public issue, contribute nothing to 

a public debate and, instead, are singularly intended to harm 

Plaintiff’s reputation.” Plaintiff further argued that his causes of 

action do not involve a statement of public interest. 

In his supporting declaration, plaintiff contended the 

challenged Con Man Statement could be understood as 

undermining his credentials and portraying him as a “career 

losing player” in the DFS arena. Specifically, according to 

plaintiff, the import of the challenged Con Man Statement was to 

cast doubt on his advice and opinions as an analyst and 

undermine his reputation for integrity. Plaintiff stated that the 

DFS community would interpret defendants’ “ ‘fraud’ ” and 

“ ‘conman’ ” statement as bearing on plaintiff’s credentials as an 

analyst. Plaintiff asserted that a DFS reader would understand 
8

the comments to mean that plaintiff engages in acts of fraud and 

deception. Plaintiff also asserted that the Lawsuit Statement 

attacked his “integrity and values within the DFS community, 

specifically with the intent of harming [his] professional 

reputation.” According to plaintiff, neither he nor his wife filed a 

lawsuit against the other.

Plaintiff elaborated, “[B]y virtue of Stetler, the owner of one 

of the most prominent DFS optimizing companies in the DFS 

business, directly accusing me of being a total fraud, conman and 

prolific liar, the context of Stetler’s message is that, contrary to 

my representations to the DFS community and public, I do not 

have a winning historical record in DFS and, instead, that I am a 

career losing player. Stetler’s comments, however, are false. 

Over the course of my career in DFS, I have a winning record and 

have in fact won far more than I have lost.” Plaintiff also 

contended, “As part of my marketing and promotion as a daily 

fantasy analyst and online personality who provides advice and 

commentary on how to win daily fantasy sports, I rely upon my 

success and accomplishments as a daily sports fantasy player to 

instill confidence in my audience that I am qualified and 

competent to provide daily fantasy sports advice.”

Plaintiff attached an exhibit of tweets to his declaration. 

The Lawsuit Statement occurred on November 29, 2019. Also on 

November 29, 2019, Fantasy Cruncher tweeted, “I’ve been the 

outsider in the ‘dfs industry’ since day 1. This shit doesn’t even 

register a 1 on the scale and the good ol’boy’s in the DFS industry 

can eat dicks. I speak the truth cause I have never taken a dollar 

from someone in any unethical manner. This is me lookin back.” 

Fantasy Cruncher replied to the string of tweets regarding the 

Lawsuit Statement, when it tweeted, “Is it really shit talk when 
9

it’s just telling the truth?? These are the industry things most 

end users don’t hear about. I just dgaf.” 

Nonparties also responded to defendants’ Lawsuit 

Statement. One person responded, “Well this looks like libel.” 

Another responded, “Im sure there’s some truth to your tweet but 

those of us in the dark want to know wat you mean.” Another 

person responded, “Cmon if you really knew something, you’d be 

able to back it up.” Another tweeted, “I mean Smizz is a trash 

person and has treated people like trash.” 

On December 2, 2019, Zeidenfeld tweeted, “Good morning 

to everyone. Literally everyone, no exceptions. ” The same day, 

defendants responded with the Con Man Statement. 

On January 7, 2020, FC_Zach, who plaintiff indicates is “an 

official Fantasy Cruncher admin account” tweeted, “Anyone who 

can get sued multiple times by their own wife is someone I don’t 

want to be around.” FC_Zach later tweeted, “Yes it’s true and I 

don’t know how they are still married.” When another user 

tweeted, “Al said its not true on stream,” FC_Zach responded, 

“He’s a lie.” 

On January 12, 2020, Fantasy Cruncher tweeted, “[Y]ou 

[plaintiff] are the weirdest dude in all of DFS. But if you want a 

fucking beat down keep talking.” Several nonparties responded 

to the tweet. Fantasy Cruncher later tweeted, “He filed a lawsuit 

against me for talking shit to him on twitter. I am being sued for 

tweets. I cannot make this up.” Several nonparties responded to 

the tweet. Fantasy Cruncher tweeted, “Can’t wait for this stupid 

fucking case to get dismissed so I can really rip into this dumbass 

@AlZeidenfeld. How anyone agreed to procreate with you is 

beyond me. Something tells me she regrets it all.” Several 

nonparties responded to the tweet. 
10

4. The trial court denies the anti-SLAPP motion

After a hearing, the trial court found defendants had met 

their burden to show that the first amended complaint arises 

from activity protected by the anti-SLAPP statute, but that 

plaintiff had made a prima facie showing of prevailing on his two 

defamation causes of action. Defendants appealed from the order 

denying the anti-SLAPP motion. The denial of an anti-SLAPP 

motion is immediately appealable.5 (Sandlin v. McLaughlin

(2020) 50 Cal.App.5th 805, 819.) 

DISCUSSION

We review the trial court’s order de novo. (Monster Energy 

Co. v. Schechter (2019) 7 Cal.5th 781, 788.) “A court evaluates an 

anti-SLAPP motion in two steps. ‘Initially, the moving defendant 

bears the burden of establishing that the challenged allegations 

or claims “aris[e] from” protected activity in which the defendant 

has engaged. [Citations.] If the defendant carries its burden, the 

plaintiff must then demonstrate its claims have at least “minimal 

merit.” ’ [Citation.] If the plaintiff fails to meet that burden, the 

court will strike the claim.” (Wilson, supra, 7 Cal.5th at p. 884.) 

5 Defendants incorrectly argue that our review is limited to 

the second prong of the anti-SLAPP analysis because plaintiff 

did not cross-appeal from the trial court’s order. A prevailing 

party is not required to file a cross-appeal to preserve arguments 

concerning the trial court’s reasoning. (Balla v. Hall (2021) 

59 Cal.App.5th 652, 673, fn. 8.)
11

A. Plaintiff’s Defamation Claims Involve Written 

Statements Made in a Public Forum in Connection 

With an Issue of Public Interest

Included in the anti-SLAPP statute’s definition of protected 

activity is section 425.16, subdivision (e), which provides: 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: (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, or (4) 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.” (§ 425.16, subd. (e); 

see Briggs v. Eden Council for Hope & Opportunity (1999) 

19 Cal.4th 1106, 1117–1118 [discussing types of statements 

covered by anti-SLAPP statute].) Both subdivision (e)(3) and 

(e)(4) require a showing that a statement be “ ‘in connection with’

an issue of public interest.” (Bernstein v. LaBeouf (2019) 43 

Cal.App.5th 15, 23 & fn. 5.) 

To satisfy the first prong of the anti-SLAPP analysis, 

defendants rely on subdivision (e)(3), which, as set forth above, 

provides anti-SLAPP protection to speech in a public forum that 

is in connection with an issue of public interest. Although the 

parties do not dispute that defendants made their statements in 
12

a public forum, the parties vigorously dispute whether the 

statements underlying plaintiff’s defamation causes of action 

were made in connection with an issue of public interest.

The anti-SLAPP statute does not define “public interest.” 

The preamble to the statute counsels that the statute “shall be 

construed broadly” (§ 425.16, subd. (a)). Our high court explained 

in FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 

145–146 (FilmOn.com Inc.) that “a statement is made ‘in 

connection with’ a public issue when it contributes to—that is, 

‘participat[es]’ in or furthers—some public conversation on the 

issue,” taking into account “considerations of context—including 

audience, speaker, and purpose.” (FilmOn.com Inc., at pp. 151–

152.) 

FilmOn.com Inc. cites favorably Rivero v. American 

Federation of State, County and Municipal Employees, AFL-CIO

(2003) 105 Cal.App.4th 913, 919–924 and Weinberg v. Feisel

(2003) 110 Cal.App.4th 1122, 1132–1133. (FilmOn.com Inc., 

supra, 7 Cal.5th at p. 149.) Rivero identifies the following factors 

in evaluating whether statements concern a public interest: The 

statements concern: (1) a person or entity “in the public eye”; 

(2) conduct that “could directly affect a large number of people 

beyond the direct participants”; or (3) a “topic of widespread, 

public interest.” (Rivero, at p. 924.) 

Weinberg elaborates that public interest for purposes of the 

anti-SLAPP statute “requires that there be some attributes of the 

issue which make it one of public, rather than merely private, 

interest. A few guiding principles may be derived from decisional 

authorities. 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. 
13

[Citation.] Thus, a matter of concern to the speaker and a 

relatively 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 [citation]. 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, ‘those charged with 

defamation cannot, by their own conduct, create their own 

defense by making the claimant a public figure.’ [Citation.] A 

person cannot turn otherwise private information into a matter of 

public interest simply by communicating it to a large number of 

people.” (Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1132–

1133; see also Rand Resources, LLC v. City of Carson (2019) 

6 Cal.5th 610, 621 [“ ‘ “a matter of concern to the speaker and a 

relatively small, specific audience is not a matter of public 

interest,” ’ and . . . ‘ “[a] person cannot turn otherwise private 

information into a matter of public interest simply by 

communicating it to a large number of people.” ’ ”].) 

Recently, in Geiser v. Kuhns (2022) 13 Cal.5th 1238

(Geiser), our high court considered whether a demonstration “to 

protest a real estate company’s business practices after the 

company evicted two long-term residents from their home”

implicated a public issue.6 (Geiser, at p. 1243.) Even though the 

genesis of the protest was an individual family’s eviction, about 

25 other people protested in an event sponsored by an advocacy 

6 The parties provided supplemental briefs addressing 

Geiser’s impact, if any, on this case. 
14

organization. (Id. at p. 1244.) Our high court concluded that the 

protest concerned an issue of public interest for purposes of the 

anti-SLAPP statute even if it also involved a matter of private 

concern to the individual family, who was evicted from the family 

home. (Id. at p. 1249.) 

The Supreme Court reasoned: “It is common knowledge 

that foreclosures, evictions, and inadequate housing are major 

issues in communities throughout California, and the 

participation of more than two dozen members of an advocacy 

group dedicated to fighting foreclosures and residential 

displacement must be considered against that backdrop.” 

(Geiser, supra, 13 Cal.5th at p. 1251.) The high court held that 

the speech implicated a public issue even though it could also be 

understood to “implicate a private dispute.” (Id. at p. 1253.) 

The Geiser court also set forth a procedure for evaluating 

whether an issue is in connection with the public interest. A 

court is first tasked with taking the “position of a reasonable, 

objective observer” to determine if the challenged speech 

implicates a public issue. (Geiser, supra, 13 Cal.5th at p. 1254.) 

The court must determine “what issue or issues the challenged 

activity may reasonably be understood to implicate.” (Ibid.) If 

we determine that the challenged speech implicates a public 

issue, we must assess whether it furthers a public discussion. 

(Id. at p. 1255.) Often the two steps overlap. (Id. at p. 1256.) In 

making this evaluation, the court is “not concerned with the 

social utility of the speech at issue, or the degree to which it 

propelled the conversation in any particular direction . . . .’ 

[Citation.]” (Id. at p. 1255.) 

Applying the reasonable objective observer test to this case, 

we conclude that the challenged speech—the Lawsuit and Con 
15

Man Statements—implicate a public issue and furthered public 

discussion. The alleged defamatory per se statements were made 

in the context of prominent participants in a popular, multibillion 

dollar industry. The speech occurred on a public forum where 

plaintiff boasts over 50,000 followers. A reasonable objective 

observer could conclude that the statements concern plaintiff’s 

integrity as an influencer, with a following of 50,000, in providing 

services and advice to those persons in the burgeoning fantasy 

sports world. That defendants’ tweets were a matter of concern 

to a substantial number of people is demonstrated by the tweets 

of numerous nonparties in response to the challenged statements, 

with some even requesting additional information. Because the 

speech was made to a large audience, was of concern to a 

substantial number of people, and involved the integrity of a 

person prominent in a multibillion dollar industry, we conclude 

that the challenged statements were in connection with an issue 

of public interest within the rubric of the anti-SLAPP statute. 

(See, e.g., Friedman v. DirecTV (S.D.C.D 2015) 262 F.Supp.3d 

1000, 1004 [lawsuit alleging idea theft fell within California’s 

anti-SLAPP provisions as being in connection with a public issue 

or an issue of public interest because of widespread interest in 

fantasy sports, the millions of fantasy sports fans, and the high 

worth of the industry]; Seelig v. Infinity Broadcasting Corp.

(2002) 97 Cal.App.4th 798, 804–805 [speech among radio 

personalities about person who was contestant on high profile 

television show was matter in the public interest].) 

The size of the audience and the context of plaintiff’s and 

defendants’ prominence as influencers in a multibillion dollar 

industry with a large following distinguish this case from 

Du Charme v. International Brotherhood of Electrical Workers
16

(2003) 110 Cal.App.4th 107, on which plaintiff relies. In 

Du Charme, an employee of a union brought defamation and 

other claims when he was terminated from his assistant manager 

position by the defendant union. Plaintiff argued that the 

statement posted on a union’s website informing the union’s 

membership that the plaintiff “had been ‘removed from office for 

financial mismanagement’ ” was defamatory. (Id. at p. 112.) In 

denying anti-SLAPP protection to that the statement, the

appellate court characterized it as “simply informing the local’s 

members of [the plaintiff’s] termination,” and being “unconnected 

to any discussion, debate or controversy.” (Id. at pp. 116, 118.) 

Du Charme’s ongoing controversy requirement “only applies 

where the issue is not of interest to the public at large.” (Sonoma 

Media Investments, LLC v. Superior Court (2019) 34 Cal.App.5th 

24, 36; see id. at p. 35 [contrasting the posting in Du Charme

with newspaper articles stating plaintiff real estate developer 

was the source of his son-in-law’s funding of city council 

campaigns because “[i]t is beyond dispute that elections in 

general, and the financing of political advertisements in 

particular, affect large numbers of people and are topics of 

widespread interest.”].) Here, plaintiff’s and defendants’

undisputed prominence in a multibillion dollar industry with 

tens of thousands of followers, as well as the undisputed broad 

interest in defendants’ tweets regarding an ongoing feud 

distinguish this case from the posting of an employee’s 

termination on a union website in Du Charme.

We reach the conclusion that defendants’ statements were 

made in connection with an issue of public interest, recognizing 

that not all speech about a person in the public eye is necessarily 

in the public interest. For example, in Albanese v. Menounos, a 
17

celebrity stylist sued for defamation when a television personality 

accused her of stealing. (Albanese v. Menounos (2013) 

218 Cal.App.4th 923, 926.) The appellate court found that the 

statements concerning the stylist’s theft were not made in 

connection with a public issue. “At best, the evidence in this case 

shows there is some public interest in [the plaintiff] based on her 

profession as a celebrity stylist and style expert.” (Id. at p. 936.) 

“[T]here is no evidence that the public is interested in this private 

dispute concerning her alleged theft of unknown items . . . .” 

(Ibid.) Here, in contrast to Albanese, there was evidence the

fantasy sports public was interested in defendants’ statements if 

only as demonstrated by the responses from participants in that 

community. (Tamkin v. CBS Broadcasting, Inc. (2011) 

193 Cal.App.4th 133, 139, 143 [in suit alleging defamation and 

false light invasion of privacy when plaintiffs’ names, likenesses, 

marital relationship, ages, and professions were “ ‘hijacked’ ” by 

writers for a television, the appellate court wrote, “[T]he creation 

and broadcasting of CSI episode 913 is an issue of public interest 

because the public was demonstrably interested in the creation 

and broadcasting of that episode, as shown by the posting of the 

casting synopses on various Web sites and the ratings for the 

episode.”].) In further contrast to the stylist in Albanese, who 

only worked for celebrities, here plaintiff portrays himself as an

influencer with over 50,000 followers. 

B. Plaintiff Has Demonstrated Minimal Merit Sufficient 

To Withstand an Anti-SLAPP Motion Only on His 

Cause of Action Based on the Con Man Statement

As previously noted, at the second step in evaluating an 

anti-SLAPP motion, the “plaintiff need not prove her case to the 

court [citation]; the bar sits lower, at a demonstration of ‘minimal 
18

merit’ [citation].” (Wilson, supra, 7 Cal.5th at p. 891.) “At this 

stage, ‘ “[t]he court does not weigh evidence or resolve conflicting 

factual claims. Its inquiry is limited to whether the plaintiff has 

stated a legally sufficient claim and made a prima facie factual 

showing sufficient to sustain a favorable judgment. It accepts the 

plaintiff’s evidence as true, and evaluates the defendant’s 

showing only to determine if it defeats the plaintiff’s claim as a 

matter of law.” ’ [Citations.]” (Ibid.) 

1. General defamation principles

“ ‘ “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.” ’ 

[Citations.] ‘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.’ [Citation.]” (Jackson, supra, 

10 Cal.App.5th at pp. 1259–1260.) “Libel” is defined as “a false 

and unprivileged publication by writing, printing, picture, effigy, 

or other fixed representation to the eye, which exposes any 

person to hatred, contempt, ridicule, or obloquy, or which causes 

him to be shunned or avoided, or which has a tendency to injure 

him in his occupation.” (Civ. Code, § 45.) 

Statements that tend to injure a person directly, and 

without the need for explanatory matter, are libelous per se. 

(Civ. Code, § 45a.)7 “A statement can also be libelous per se if it 

7 Civil Code section 45a provides: “A libel which is 

defamatory of the plaintiff without the necessity of explanatory 

matter, such as an inducement, innuendo or other extrinsic fact, 

is said to be a libel on its face. Defamatory language not libelous 
19

contains a charge by implication from the language employed by 

the speaker and a listener could understand the defamatory 

meaning without the necessity of knowing extrinsic explanatory 

matter. [Citation.] However, if the listener would not recognize 

the defamatory meaning without ‘knowledge of specific facts and 

circumstances, extrinsic to the publication, which are not matters 

of common knowledge rationally attributable to all reasonable 

persons’ [citation], the matter . . . requires pleading and proof of 

special damages.” (McGarry v. University of San Diego (2007) 

154 Cal.App.4th 97, 112.) 

A statement must be considered in context to determine if 

it has a defamatory meaning. (Balzaga v. Fox News Network,

LLC (2009) 173 Cal.App.4th 1325, 1338 [“snippets” may not be 

considered out of context; see also Summit Bank v. Rogers (2012) 

206 Cal.App.4th 669, 696 (Summit Bank) [court should consider 

totality of the circumstances].) “ ‘ “Whether a statement declares

or implies a provably false assertion of fact is a question of law 

for the court to decide [citations], unless the statement is 

susceptible of both an innocent and a libelous meaning, in which 

case the jury must decide how the statement was understood.” ’ 

[Citation.]” (Reed v. Gallagher (2016) 248 Cal.App.4th 841, 856

(Reed).)

2. The Lawsuit Statement was not libelous per se

To recap, the Lawsuit Statement was defendants’ tweet,

“How did the lawsuit you had vs. your own wife turn out?” 

We conclude this statement is not defamatory per se. It does not 

on its face is not actionable unless the plaintiff alleges and proves 

that he has suffered special damage as a proximate result 

thereof. Special damage is defined in Section 48a of this code.”
20

tend to injure a person directly without the need for explanatory 

matter. (Civ. Code, § 45.) Merely stating involvement in 

litigation absent more information about the litigation, would not 

tend to harm a litigant’s reputation. It is undisputed that 

plaintiff did not allege or present evidence of special damages—a 

necessary element of a purported defamatory statement that 

is not defamatory per se. Accordingly, plaintiff’s failure to 

establish a probability of prevailing on his claim of defamation 

per se regarding the Lawsuit Statement fails to pass step two of 

the anti-SLAPP framework. (See fn.7, ante.) 

Plaintiff argues that that the Lawsuit Statement shows he 

“is of such inferior character and so untrustworthy that even his 

own wife has sued him multiple times.” This argument is based 

on a mischaracterization of the allegations in the operative 

complaint. The alleged defamatory statement, quoted above, 

neither references multiple lawsuits nor states plaintiff’s wife 

filed suit. Although defendants in subsequent tweets refer to 

multiple lawsuits, these tweets are not alleged in the operative 

pleading as the basis for the defamation causes of action. To 

repeat, because plaintiff alleges only per se defamation, the 

alleged statement, on its face, must be defamatory without resort 

to extrinsic explanatory matter. Because the Lawsuit Statement 

is not such a statement, the trial court should have stricken the 

cause of action based on that Statement.

3. The Con Man Statement may be understood as 

relating provable facts that are libelous per se

As set forth above, the Con Man Statement recited, “Smizz 

is a total fraud and this is probably the 10th lie he has told today. 

Fucking con man.” Defendants argue that the statement was not 

based on provable facts and instead was mere opinion, which 
21

cannot support a cause of action for defamation. Defendants also 

argue that the context, which was not alleged in the complaint, 

shows that the statements are not libelous. 

We reject defendants’ characterization of the Con Man 

Statement as lacking in defamatory content because they were 

published on Twitter and because, according to defendants, it is 

“a common and accepted practice throughout Twitter, and in 

particular withing the DFS community” to “lob” “extemporaneous 

‘jabs.’ ”

We live increasingly in a world where the marketplace of 

ideas is on the internet, including social media sites. We are not 

aware of any California case that has held that merely because 

“insults” are the purported lingua franca of social media, any 

such “insults” are automatically immune from defamation 

scrutiny.8 We recognize that the Twitter context here is relevant, 

but it is not dispositive. (Feld v. Conway (D. Mass 2014) 

16 F.Supp.3d 1, 4 [tweet made as part of “heated Internet debate”

could not be understood to state actual facts].) That being said,

California courts have recognized that statements on Twitter 

8 See Dreibelbis, Note, “Social Media Defamation: A New 

Legal Frontier Amid the Internet Wild West” (2021) 16 Duke J. of 

Const. L. & Policy 245, 257–258 (Note, Social Media Defamation)

[observing that “[s]ocial media platforms have become the 

primary news source for many Americans” and that “[s]ome 

courts [citing New York as an example] treat social media speech 

as per se hyperbole, citing to factors like its casual, imprecise 

language, anonymity, and lack of editorial oversight,” while 

others have applied “traditional defamation principles to social 

media speech, pointing to the recklessness with which users post 

statements and the specific knowledge claimed when asserting 

falsehoods.”].)
22

can be defamatory. (Bently Reserve LP v. Papaliolios (2013) 

218 Cal.App.4th 418, 428–429 [content posted on the internet 

was reasonably susceptible to interpretation implying a false 

assertion of fact].) “[T]he mere fact speech is broadcast across the 

Internet . . . does not ipso facto make it nonactionable opinion 

and immune from defamation law.” (Id. at p. 429; see also 

Sanders v. Walsh (2013) 219 Cal.App.4th 855, 864 [online 

commentators are not immune from defamation liability]; 

ZL Technologies, Inc. v. Does 1–7 (2017) 13 Cal.App.5th 603, 629 

[online reviews of employer constituted actionable defamation].) 

Moreover, the statements were not made on a platform alerting 

the reader that the statements should be viewed with skepticism. 

(Cf. Summit Bank, supra, 206 Cal.App.4th at p. 696 [statements 

broadcast “ ‘Rants and Raves’ ” section of website alerted the 

reader that those statements should be viewed with skepticism].) 

Defendants’ efforts to analogize their statements to those 

made during a heated political campaign are inapt. In Reed,

supra, 248 Cal.App.4th at p. 859, the court emphasized the 

statement that plaintiff, defendant’s rival candidate for the 

California Assembly, was a crook “was made during the heat of a 

political campaign, a context in which the audience would 

naturally anticipate the use of rhetorical hyperbole.” (Ibid.) 

Under these circumstances, the Reed court held that 

no reasonable person would have thought the defendant 

was accusing the plaintiff of actual criminal activity. (Ibid.) 

Similarly, in Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 

264–265 (Rosenaur), the court found not actionable a statement 

referring to a political opponent as a “ ‘thief’ ” because it would be 

understood as “hyperbole” and not as a claim that a defendant 

had a criminal past. The court explained: “As distasteful as such 
23

a charge is, ‘[o]ur political history reeks of unfair, intemperate, 

scurrilous and irresponsible charges’ [citation] which are 

nonetheless protected by the First Amendment when no one 

could reasonably interpret them as a defamatory fact.” (Id. at 

p. 265.) Relying on the importance of the political context, 

Fletcher v. San Jose Mercury News (1989) 216 Cal.App.3d 172, 

190 held that an alleged defamatory statement that a former 

San Jose city councilman was a “ ‘crook and a crooked politician 

and I don’t want him to be reelected’ ” was mere opinion. (Id. at 

pp. 190–191.) 

Defendants also rely on Issa v. Applegate (2019) 

31 Cal.App.5th 689, 695, which also emphasizes the special 

context of political speech in evaluating an anti-SLAPP motion. 

In contrast to other forms of speech, according to Issa, “political 

speech” requires an “extraordinary degree of protection.” (Ibid.) 

“While ‘[i]t is abhorrent that many political campaigns are meanspirited affairs that shower the voters with invective instead of 

insight,’ in order ‘to ensure the preservation of a citizen’s right of 

free expression, we must allow wide latitude.’ [Citation.]” (Ibid.) 

In this context, the court concluded that the statement the 

politician “ ‘[g]amed the system to line his own pockets’ ” was not 

provably false. (Id. at pp. 705–706.) 

In contrast to Reed, Rosenaur, Fletcher, and Issa, the case 

before us does not involve a political candidate. Instead, it 

involves an influencer in a prominent online industry in which 

defendants apparently responded to plaintiff’s good-morning 

greeting with an accusation that plaintiff is a fraud, liar, and con

man. Nothing about a good morning greeting or about the online 

sports industry would allow us to conclude that defendants’

accusation is mere rhetorical hyperbole.
24

Defendants argue their Con Man Statement is outside the 

purview of defamation because the statement constitutes 

nonactionable opinion. Quoting Gertz v. Robert Welch, Inc. (1974) 

418 U.S. 323, 339–340 (Gertz), defendants emphasize: “However 

pernicious an opinion may seem, we depend for its correction not 

on the conscience of judges and juries but on the competition of 

other ideas.” Subsequent to Gertz, the United States Supreme 

Court decided Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1

(Milkovich), which, as described below, clarified Gertz. 

Milkovich involved the defamation claim of a high school 

wrestling coach who testified in administrative proceedings 

involving an altercation with another team at a home wrestling 

game. The defendant was the owner of a local newspaper that 

printed an article stating, among other things, that students 

attending the wrestling meet learned, “ ‘If you get in a jam, lie 

your way out,’ ” and that any “ ‘impartial observer, knows in his 

heart that Milkovich . . . lied [under oath] at the hearing . . . .’ ” 

(Milkovich, supra, 497 U.S. at pp. 4–5.) 

In the majority opinion,9 Chief Justice Rehnquist detailed 

the evolution of defamation law, by starting with a quote from 

Act III, scene 3 of Shakespeare’s Othello, “ ‘But he that filches 

from me my good name [¶] Robs me of that which not enriches 

him, [¶] And makes me poor indeed.’ ” (Milkovich, supra, 

497 U.S. at p. 12.) The majority then notes the development of 

the defamation tort and the limitations the United States 

Supreme Court has imposed on that tort when a public issue is 

involved or the plaintiff is a public figure. (Id. at p. 14). Included 

9 Justice Brennan dissented and Justice Marshall joined in 

the dissent. 
25

in that jurisprudential genealogy is the court’s discussion of 

Gertz, which tackled a private—as opposed to public—figure’s 

“defamation actions involving statements of public concern.” 

(Milkovich, at p. 15.)

The court described the language on which defendants rely 

as dictum and rejected a reading of Gertz that would exempt from 

defamation scrutiny statements that could be labeled as opinion:

Gertz was not “intended to create a wholesale defamation 

exemption for anything that might be labeled ‘opinion.’ ” 

(Milkovich, supra, 497 U.S. at p. 18.) In doing so, the majority

reasoned, “[E]xpressions of ‘opinion’ may often imply an assertion 

of objective fact.” (Ibid.) As an example, the court posited, “If a 

speaker says, ‘In my opinion John Jones is a liar,’ he implies a 

knowledge of facts which lead to the conclusion that Jones told an 

untruth. Even if the speaker states the facts upon which he 

bases his opinion, if those facts are either incorrect or incomplete, 

or if his assessment of them is erroneous, the statement may still 

imply a false assertion of fact.” (Id. at pp. 18–19.) The majority

further explained, “[T]he statement, ‘In my opinion Jones is a 

liar,’ can cause as much damage to reputation as the statement, 

‘Jones is a liar.’ ” (Id. at p. 19.) 

Applying these principles to the article before it, the 

majority concluded that the statements in the article could 

reasonably be interpreted to “imply an assertion that . . .

Milkovich perjured himself in a judicial proceeding.” (Milkovich, 

supra, 497 U.S. at p. 21.) The court contrasted the statements 

with “loose, figurative, or hyperbolic language which would 

negate the impression that the writer was seriously maintaining

that [Milkovich] committed the crime of perjury,” and that “the 

connotation that petitioner committed perjury is sufficiently 
26

factual to be susceptible of being proved true or false.” 

(Milkovich, supra, 497 U.S. at p. 21.) 

Turning to this case, it is undisputed that plaintiff’s 

business is one of selling his opinions and advice in a multibillion 

dollar industry that exists almost, if not entirely, on the internet.

His currency, if you will, is his integrity. Statements on social 

media calling him a con man, a liar and a fraud, can, like the 

purported opinions in Milkovich, be reasonably understood by 

plaintiff’s and defendants’ followers as accusing plaintiff of 

corruption, an accusation that is “susceptible of being proved true 

or false.” We agree with defendants when they were discussing 

prong one that the subject of this appeal contributed to a public 

conversation because “ ‘the owner of one of the most prominent 

DFS optimizing companies in the DFS business’ is allegedly 

accusing a longtime professional DFS analyst with “ ‘the largest 

following/subscribers amongst any DFS content creator’ of ‘being 

a total fraud, conman, and prolific liar’ ” and that the statements 

concerned integrity. 

Defendants’ reliance on Copp v. Paxton (1996) 

45 Cal.App.4th 829 is misplaced. Before the court were written 

statements like defendant had to “ ‘keep him [the plaintiff] 

honest. Quite an experience. Quite a challenge[,]’ ” which the 

court described as making “no factual imputation of specific 

dishonest conduct capable of being proved true or false.” (Id. at 

pp. 838–839.) The Copp court relied on Gertz, among other cases, 

to conclude that these statements were opinions, and as such 

were “not actionable as a matter of constitutional law.” (Id. at 

p. 837.) We observe that Copp may no longer be persuasive in 

light of the United States Supreme Court’s limitation of Gertz in 

Milkovich. Assuming Copp remains viable, we conclude that the 
27

Con Man Statement is capable of being proved true or false for 

the reasons discussed above. 

We further conclude that the Con Man Statement may be 

understood as per se libelous. No additional context is necessary 

to understand defendants’ accusations as having a tendency to 

injure. The labels “fraud,” “con-man,” and “liar,” go to the heart 

of plaintiff’s reputation for veracity and without anything more,

impugn his integrity. There are no specific facts a reader must 

know to understand the defamatory meaning of calling a person a 

con man, liar, and fraud. Defendants fault plaintiff for failing to 

allege additional context, but no such context was necessary to 

understand the defamatory meaning of the Con Man Statement. 

Additionally, defendants vouched for the accuracy of the 

information as well as defendants’ inside knowledge of facts 

tweeting, “Is it really shit talk when it’s just telling the truth?? 

These are the industry things most end users don’t hear about. I 

just dgaf.” For Stetler to then follow these statements with the

Con Man Statement would thus reasonably be viewed as serious, 

fact-based attacks on Zeidenfeld’s integrity and not hyperbole. 

Defendants rely on Rapaport v. Barstool Sports, Inc., 

(S.D.N.Y. Mar. 29, 2021, No. 18 Civ. 8783 (NRB)) 2021 WL 

1178240, an unpublished federal district court case that relies on 

New York law, a jurisdiction that has been described as treating 

social media statements as per se hyperbole.10 In Rapaport, the 

defendant referred to plaintiff as a racist, fraud, hack, wannabe, 

and liar. (Id. at p. *13.) The federal district court found these 

10 See Note, Social Media Defamation, at p. 258 (“New 

York courts are at the forefront of treating defamatory social 

media speech as per se hyperbole or opinion, and they often cite 

the informal nature of the speech.”) 
28

statements “represent nothing more than the . . . Defendants’

subjective evaluations of [plaintiff] that are incapable of being 

objectively proven true or false.” (Ibid.) In reaching this 

conclusion, Rapaport, nonetheless, noted that “calling someone a 

‘liar’ is more capable of being proven true or false” than the other 

statements made. (Id. at p. *14, fn. 17.) In contrast to Rapaport, 

here, as explained, defendants’ statements may be reasonably 

understood accusing plaintiff of corruption, an accusation that is 

susceptible of being proved true or false.

4. Plaintiffs sufficiently demonstrated actual 

malice

As noted earlier in our Discussion, the First Amendment 

limits damages “a private individual could obtain from a 

publisher for a libel that involved a matter of public concern.” 

(Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. (1985) 

472 U.S. 749, 751 [summarizing Gertz].) When the defamatory 

statements involve a matter of public concern, a plaintiff must 

show “ ‘actual malice,’ that is, knowledge of falsity or reckless 

disregard for the truth.” (Dun & Bradstreet, Inc., at p. 751.) 

Actual malice is not the same as ill will but requires at a 

minimum “reckless disregard as to truth or falsity.” (Masson v. 

New Yorker Magazine, Inc. (1991) 501 U.S. 496, 509, 511.) 

Circumstantial evidence such as “anger and hostility 

toward the plaintiff [citation], reliance upon sources known to be 

unreliable [citations], or known to be biased against the plaintiff,”

and “failure to investigate” may, “in an appropriate case, indicate 

that the publisher himself had serious doubts regarding the truth 

of his publication.” (See Reader’s Digest Assn. v. Superior Court 

(1984) 37 Cal.3d 244, 258.) “To support a finding of actual 

malice, the failure to investigate must fairly be characterized as ‘
29

“the purposeful avoidance of the truth” ’ or the ‘ “product of a 

deliberate decision not to acquire knowledge of facts that might 

confirm the probable falsity of [the subject] charges.” ’ 

[Citation.]” (Rosenaur, supra, 88 Cal.App.4th at p. 277.)

At this stage in the proceedings, in the context of an antiSLAPP suit motion where plaintiff has little, if any, discovery, 

the plaintiff “must establish a probability that he or she can 

produce such clear and convincing evidence” “that the allegedly 

defamatory statements were made with knowledge of their falsity 

or with reckless disregard of their truth or falsity.” 

(Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 

151 Cal.App.4th 688, 700 (Overstock).)11 “ ‘Actual malice may be 

proved by circumstantial or direct evidence. [Citation.] . . . . 

[Citation.]’ [Citation.]” (Overstock, at p. 709.) Plaintiff has met 

this standard. 

Although Stetler averred he believed in the truth of the 

Lawsuit Statement,

12 Stetler never asserted that he believed in 

the truth of his Con Man Statement. This supports the inference 

11 Overstock cited Milkovich in concluding that “a false 

statement of fact, whether expressly stated or implied from an 

expression of opinion, is actionable.” (Overstock, supra, 

151 Cal.App.4th at p. 701.) 

12 With respect to the Lawsuit Statement, Stetler averred,

“I had (and still have) a sincere belief that Smizz has been 

involved in litigation adverse to his wife. This was conveyed to 

me by mutual acquaintance Brian . . . , who is well known in the 

DFS community (and who has thousands of followers of his own). 

I considered the information from Brian to be reliable, and I had 

no reason to doubt it, as he claims to know and have worked with 

Smizz’s wife in the past, and as far as I know, he has no reason to 

make up a story like that.” 
30

that he did not. Moreover, Stetler himself professed ill-will 

toward plaintiff when he described a “feud” between them. 

Stetler further disliked “the type of service and analysis offered 

by Smizz.” Stetler’s description of his comments as “insults,”

“ ‘trash talk,’ ” and “extemporaneous ‘jabs’ ” suggest the 

statements were made without investigation or reflection and 

with an indifference to the truth or falsity of the statements. 

Defendants’ only retort to plaintiff’s argument that defendants 

acted with malice is that defendants believe the statements are 

mere “hyperbolic insults,” a characterization we have rejected. 

Defendants’ own tweets contain statements which, at this 

early stage of the proceedings, support an inference of 

recklessness to the truth of the statements. Defendants tweeted 

that they wanted to “rip into this dumbass @AlZeidenfeld,” that 

the “good ol’boy’s in the DFS industry can eat dicks,” and that 

defendants “just dgaf.” The inference of recklessness to the truth 

is supported by defendants’ description of their tweets as “trashtalking.” Additional discovery may shed more light on the 

meaning of defendants’ tweets and whether they are indicia of 

recklessness to the truth. 

Manzari v. Associated Newspapers Ltd. (9th Cir. 2016) 

830 F.3d 881, 882–893, which applied California law, is 

instructive. Manzari involved a newspaper’s publication of a 

photo of the plaintiff juxtaposed next to a headline reading that 

the porn industry was shut down because a performer tested 

positive for HIV. The Ninth Circuit concluded that the 

juxtaposition of the headline and article showed that the 

newspaper acted with reckless disregard of “ ‘whether its words 

would be interpreted by the average reader as a false statement 

of fact.’ [Citation.]” (Id. at p. 892.) The newspaper removed 
31

contextual information from the photograph prior to publishing it 

and failed to “include any explanation or disclaimer” indicating 

that the plaintiff was not the performer who tested positive for 

HIV. (Ibid.) Even though the newspaper employees denied that 

they intended to make an implication about the plaintiff, the 

“willful blindness cannot immunize publishers where they act 

with reckless disregard for the truth or falsity of the implication 

they are making.” (Id. at p. 893.) 

Similarly, here, the totality of the evidence at this early 

stage persuades us that plaintiff has shown a sufficient 

“probability” that he can produce clear and convincing evidence 

that defendants made the Con Man Statement with knowledge of 

its falsity or with reckless disregard of truth or falsity. 

(Overstock, supra, 151 Cal.App.4th at p. 700.) 
32

DISPOSITION

The trial court’s order denying the anti-SLAPP motion is 

affirmed in part and reversed in part. The trial court is directed 

to enter a new order granting the motion insofar as it seeks to 

strike the defamation cause of action based on the Lawsuit 

Statement and denying it insofar as it seeks to strike the 

defamation cause of action based on the Con Man Statement. 

The parties shall bear their own costs on appeal. 

NOT TO BE PUBLISHED.

BENDIX, J.

We concur:

ROTHSCHILD, P. J.

KELLEY, J.*

* Judge of the Los Angeles County Superior Court, 

assigned by the Chief Justice pursuant to article VI, section 6 of 

the California Constitution.