Filed 12/23/22 Koerber v. Project Veritas CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

KIMBERLY KOERBER,

Plaintiff and Appellant,

v.

PROJECT VERITAS et al.,

Defendants and Appellants.

B298540

Los Angeles County

Super. Ct. No. BC681083

APPEAL and CROSS-APPEAL from orders of the Superior 

Court of Los Angeles County, Elaine Lu, Judge. Affirmed.

Gary Rand & Suzanne E. Rand-Lewis, Suzanne E. RandLewis and Timothy Rand-Lewis for Plaintiff and Appellant.

Litchfield Cavo, G. David Rubin and Elizabeth M. 

Sanguinetti for Defendants and Appellants.

_______________________________________
2

INTRODUCTION

This is plaintiff Kimberly Koerber’s second lawsuit against 

defendants Project Veritas, Project Veritas Action Fund (Action 

Fund), James O’Keefe III (O’Keefe), and Christian Hartsock

(defendants). The trial court granted in part defendants’ special 

motion to strike Koerber’s complaint under Code of Civil

Procedure1 section 425.16 (anti-SLAPP statute), dismissing

Koerber’s claims against Project Veritas, Action Fund, and 

O’Keefe for intentional infliction of emotional distress (IIED), 

negligence, and intentional interference with prospective 

economic advantage (economic interference), as well as all of 

Koerber’s claims against Hartsock. As to Project Veritas, Action 

Fund, and O’Keefe, the court denied the anti-SLAPP motion with 

respect to Koerber’s claims for defamation and unfair business 

practices. The court awarded defendants $40,942 in attorney fees 

and costs.

Koerber appeals from the court’s orders granting in part 

defendants’ anti-SLAPP motion and awarding defendants 

attorney fees and costs. She raises several procedural and 

substantive arguments challenging both orders. Project Veritas, 

Action Fund, and O’Keefe cross-appeal from the court’s order 

denying in part their anti-SLAPP motion, arguing Koerber failed 

to show a reasonable probability of prevailing on her claims for 

defamation and unfair business practices. As we explain, the 

parties’ arguments lack merit. We therefore affirm the court’s 

orders.

1 All undesignated statutory references are to the Code of Civil 

Procedure. 
3

FACTS AND PROCEDURAL BACKGROUND

1. The Parties

Koerber used to work as a sales consultant for an

educational content company, where she sold “National 

Geographic materials.” According to Koerber, she never occupied 

a “management” position at the company or worked as an 

“official” in the book publishing industry. Nor did she ever have a 

policy making role with respect to the development of educational 

policies, such as the Common Core curriculum.

Project Veritas is a non-profit “media organization” that 

engages in “undercover investigative journalism.” Project Veritas 

claims its “reports average over 100,000 views online” and are 

often covered by “other news outlets.” One of Project Veritas’s 

goals is to “educate and inform the public about issues of public 

interest.” Like Project Veritas, Action Fund is a non-profit media 

organization involved in investigative journalism; O’Keefe is 

Action Fund’s president. According to Koerber, Hartsock is an 

officer and employee of Project Veritas.

2. Koerber’s Interview and the Termination of Her 

Employment

In the fall of 2015, Project Veritas “launched an 

investigation into the Common Core curriculum.” The 

investigation focused on the “relationship between textbook 

companies and Common Core standards, how textbook companies 

promoted Common Core to public officials and legislators, and 

the lobbying tactics of textbook companies,” as well as “the 

reaction of those within the textbook industry to the backlash 

against Common Core.”
4

In November 2015, an unknown caller asked Koerber to

participate in an interview, which the caller claimed would help

then-California Attorney General Kamala Harris formulate 

“policy” on “an issue”. The caller told Koerber the meeting would 

be “private” and “confidential.” 

The next day, Koerber went to a Starbucks and sat in a 

patio area that she believed was private. There, she met two 

people, one of whom gave her a business card, which stated the 

cardholder’s name was “Alyssa Harris,” a “project manager” with 

“Breakthrough Dev Group.” The interviewers told Koerber her 

statements would be used “as anonymous research to assist 

Kamala Harris in formulating policy.” The interview was video 

and audio recorded without Koerber’s knowledge and consent.

In January 2016, Project Veritas published a series of 

reports on Common Core. The third report, which was originally 

published on YouTube in late January 2016, is a video featuring 

clips of Koerber’s November 2015 interview, as well as clips of 

several candidates from the 2016 presidential primary election 

and O’Keefe talking about Common Core (January 2016 Video). 

The video also features clips of two other book publishing 

employees. In those clips, one of the employees states: “I hate 

kids. I’m in it to sell books, don’t even kid yourself for a 

heartbeat.” The other employee states: “There’s always money in 

it. It’s never about the kids.”

Koerber was fired from her job as a sales consultant after

Project Veritas published the January 2016 Video.

3. Koerber’s First Lawsuit

In February 2017, Koerber sued, among others, her former 

employer, Project Veritas, and several entities and individuals 

associated with Project Veritas, including Action Fund, O’Keefe, 
5

and Hartsock. Koerber asserted 23 causes of action, including 11 

against Project Veritas based on allegations that the organization 

recorded, edited, and published the January 2016 Video under 

false pretenses and without Koerber’s knowledge or consent. 

In October 2017, Project Veritas moved to strike Koerber’s 

claims against the organization under the anti-SLAPP statute. 

The court granted Project Veritas’s motion and dismissed the 

organization from Koerber’s lawsuit. We affirmed the order

granting Project Veritas’s anti-SLAPP motion in September 2019. 

4. Project Veritas’s Second Video

In September 2017, O’Keefe, through Action Fund, released 

a video in which he addresses Koerber’s first lawsuit, as well as 

other plaintiffs’ lawsuits, against the organization (September 

2017 Video). The video was posted on Action Fund’s website, 

YouTube, Twitter, and Facebook.

At the beginning of the video, O’Keefe walks into an office 

and stands in front of a desk containing a laptop and several 

binders and documents, including copies of various court filings. 

O’Keefe addresses the camera and talks about two lawsuits filed 

against defendants. 

O’Keefe then addresses Koerber’s first lawsuit against 

defendants. As O’Keefe talks, a photograph of the cover page to a 

motion filed in Koerber’s first lawsuit appears in the background 

of the video while O’Keefe holds a copy of what appears to be 

Koerber’s complaint from that lawsuit with a large yellow sticky

note attached to the front that says, “KOERBER.” O’Keefe says 

this about Koerber and her first lawsuit: “We got another lawsuit 

from this official who ... [W]hen we did the Common Core 

investigation last year, that’s the one where they said we don’t 

care about kids[;] it’s all about money. [¶] Well, one of the people 
6

in the book publishing industry has sued us. I don’t know why 

she’s suing us. She should sue herself; she’s the one who said 

what she said, and she didn’t deny it.”

Later in the video, O’Keefe speculates that the plaintiffs 

may have conspired to sue defendants at the same time and 

claims the lawsuits were beneficial “because [defendants are] 

raising more funds.” At the end of the video, O’Keefe asks his 

viewers to “stay tuned” because defendants would soon release 

more content from their “American Pravda Series,” which was

“aimed at the media.”

5. The Current Lawsuit

In October 2017, Koerber filed a second lawsuit against 

Project Veritas, Action Fund, O’Keefe, and Hartsock.2 Koerber’s 

complaint asserts five causes of action against defendants: (1) 

IIED; (2) unfair business practices; (3) negligence; (4) defamation; 

and (5) economic interference. 

Koerber’s claims against defendants arise out of the 

statements that O’Keefe made about her in the September 2017 

Video. Specifically, the crux of Koerber’s claims is that O’Keefe 

defamed her when he claimed she was an “official” in the book 

publishing industry and insinuated that she said, “ ‘we don’t care 

about kids all we care about is money.’ ” 

Koerber claimed the September 2017 Video brought a 

“renewed interest” in the January 2016 Video—i.e., the video that 

formed the basis for Koerber’s first lawsuit. She also claimed 

defendants released the September 2017 Video to, among other 

things, “solicit ‘donations’ to fund [their] ‘defense’ ” against 

2 Koerber also sued Allison Maass, who is not a party to this appeal. 
7

Koerber’s and the other plaintiffs’ lawsuits. Among other things, 

Koerber sought monetary relief, including punitive damages, and 

an injunction requiring Project Veritas to remove and expunge all 

recordings of, and statements about, her. 

In July 2018, defendants moved to strike all the claims in

Koerber’s complaint under the anti-SLAPP statute.

3 Defendants

argued Koerber’s entire lawsuit arose out of protected conduct—

i.e., defendants’ journalistic activities relating to their Common 

Core investigation and public commentary on Koerber’s lawsuit 

arising out of that investigation. Defendants also argued Koerber 

couldn’t establish a reasonable probability of succeeding on the 

merits of her claims because: (1) she couldn’t prove the elements 

of any of those claims; (2) defendants’ conduct was protected by 

the litigation privilege; and (3) Koerber’s claims in the instant 

lawsuit were precluded by the adverse rulings against Koerber in 

her first lawsuit against defendants. 

In support of their motion, defendants filed, among other 

things, declarations executed by Russell Verney, Project Veritas’s

and Action Fund’s executive director; G. David Rubin and 

Elizabeth M. Sanguinetti, defendants’ counsel; and Hartsock.

Hartsock testified he wasn’t involved in the production or release 

of the September 2017 Video.

Defendants also filed a request for judicial notice of the 

following items: (1) a copy of the January 2016 Video; (2) a copy 

of the September 2017 Video; (3) several documents and minute 

orders from Koerber’s first lawsuit against defendants; (4) several 

news articles addressing defendants’ activities; and (5) the 

3 Defendants also filed a demurrer to Koerber’s complaint, a copy of 

which Koerber hasn’t included in the record on appeal.
8

existence of three lawsuits other plaintiffs had filed against some 

of the defendants.

In March 2019, Koerber opposed the anti-SLAPP motion.

She argued the motion was untimely because it was not filed 

within 60 days of when Koerber filed her complaint. Koerber also 

claimed the court lacked jurisdiction to rule on the motion 

because it did not schedule a hearing until more than 30 days 

after the motion was filed.

As to the merits, Koerber argued her claims were not 

subject to the anti-SLAPP statute because defendants’ challenged 

conduct was commercial speech under section 425.17, subdivision 

(c). Alternatively, Koerber asserted none of her claims arose out 

of protected activity, and, in any event, she established a 

probability of prevailing on all her claims.

In support of her opposition, Koerber filed her own 

declaration as well as declarations executed by her counsel, 

Suzanne E. Rand-Lewis and Timothy D. Rand-Lewis. Koerber 

testified that she was never an “official” or other “influential 

person” in the publishing industry, and she never had a role in 

“policy making” for the Common Core curriculum. Koerber also 

denied ever stating, “ ‘we don’t care about kids, all we care about 

is money.’ ” Koerber claimed she lost “contracts, income, benefits, 

401k contributions, health insurance, car, phone, email, vacation 

and bonuses, and [became] emotionally distressed and physically 

ill” because of the September 2017 Video.

Koerber lodged over 150 objections to the evidence that 

defendants filed in support of their anti-SLAPP motion, and she

opposed defendants’ request for judicial notice.

As part of their reply papers, defendants lodged over 300 

objections to the evidence Koerber submitted in support of her 
9

opposition, many of which challenged Koerber’s and her counsel’s 

statements as hearsay, lacking foundation, or legal conclusions.

After a hearing in April 2019, the court took defendants’ 

anti-SLAPP motion under consideration. In May 2019, the court 

issued a 50-page ruling. 

The court sustained more than 30 of Koerber’s objections to 

defendants’ evidence and more than 100 of defendants’ objections 

to Koerber’s evidence. The court also granted defendants’ request 

for judicial notice in its entirety, taking judicial notice of the 

existence and content of, but not the truth of any statements 

included in, the January 2016 Video and the September 2017 

Video. The court also took judicial notice of the existence of, but 

not the truth of any statements included in, the various news 

articles discussing defendants’ activities, the documents from 

Koerber’s first lawsuit against defendants, and the three lawsuits 

that were filed by other plaintiffs against some of the defendants. 

The court rejected Koerber’s claims that the motion was 

untimely and that the court did not hear the motion in a timely 

manner. The court also rejected Koerber’s contention that all her 

claims were exempt from the anti-SLAPP statute because they 

arose out of defendants’ commercial speech. 

As to Hartsock, the court found he wasn’t involved in any of 

the conduct giving rise to Koerber’s claims. Accordingly, the court 

granted the anti-SLAPP motion as to all of Koerber’s claims 

against Hartsock.4

As to the remaining defendants, the court granted the 

motion in part and denied it in part. Under the first prong of the 

anti-SLAPP statute, the court found defendants’ September 2017 

4 Koerber doesn’t challenge this part of the court’s ruling on appeal.
10

Video qualified as protected speech. The video addressed an issue 

under review by a judicial body, and it was published in a public 

forum—i.e., on various websites and social media platforms—and 

it discussed issues of public interest—i.e., lawsuits filed against 

defendants and defendants’ investigations of topics that garnered

news coverage and widespread interest among the public. 

Under the second prong, the court rejected defendants’ 

arguments that Koerber’s claims in this lawsuit arose out of 

privileged conduct or were barred by the parties’ litigation in 

Koerber’s first lawsuit, reasoning that the two actions challenged

different conduct. The court then found Koerber demonstrated a 

probability of prevailing on her claims for defamation and unfair 

business practices and failed to show a likelihood of success on 

her claims for IIED, economic interference, and negligence. 

In December 2019, the court granted defendants’ motion for 

attorney fees and costs, awarding them $40,942 as prevailing 

parties under the anti-SLAPP statute (§ 425.16, subd. (c)).

Koerber appeals from the order granting in part and 

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

awarding defendants fees and costs. Defendants cross-appeal 

from the order on their anti-SLAPP motion. 

DISCUSSION

Timeliness of the Anti-SLAPP Motion

As a preliminary matter, Koerber argues the court should 

have denied defendants’ anti-SLAPP motion as untimely. 

Alternatively, Koerber contends the court lacked jurisdiction to 

rule on the motion because more than 30 days passed between 

when the motion was filed and heard. Both these arguments lack 

merit. 
11

1. Relevant Background

Koerber filed her complaint on October 25, 2017. On 

November 29, 2017, Koerber filed a proof of service of summons, 

which stated that an agent tried to personally serve Hartsock on 

November 2, 2017, but Hartsock refused to accept copies of the 

complaint, the summons, and other documents. On December 20, 

2017, Koerber filed proofs of service concerning Project Veritas, 

Action Fund, and O’Keefe. As to Project Veritas and Action Fund, 

Koerber mailed the summons, the complaint, and other 

documents on September 7, 2017 and again on December 20, 

2017. As to O’Keefe, Koerber mailed the same documents on 

December 20, 2017. 

On January 9, 2018, defense counsel sent Koerber’s counsel 

an email concerning the “purported service of the summons and 

complaint.” Defense counsel claimed service “was either nonexistent [or] procedurally improper and therefore ineffective and 

subject to a motion to quash for lack of proper service.” Defense 

counsel asked Koerber’s counsel to withdraw the “purported 

service of summons and complaint as to [defendants]” and send 

defendants “Notice of Acknowledgement of Receipt forms and 

related documents,” which defendants would agree to sign. 

Defense counsel stated that once the parties executed the

acknowledgment of receipt forms, “the deadline for [defendants] 

to file responsive pleadings to [Koerber’s] complaint will be 

determined by the dates the Notice of Acknowledgement forms 

are returned.”

On January 16, 2018, Koerber’s counsel replied to defense 

counsel’s email with a one word response: “Agreed.” 

On May 3, 2018, Koerber sent defendants 

acknowledgement of receipt forms. On May 17, 2018, before 
12

defendants signed the acknowledgment of receipt forms, Koerber 

filed a supplemental proof of service of summons and complaint, 

asserting service was effectuated on all defendants on May 3, 

2018. On May 23, 2018, defendants signed the forms, 

acknowledging receipt of the summons, the complaint, and other

documents.

On July 19, 2018, defendants filed their anti-SLAPP 

motion. Around the same time, defense counsel tried to reserve a 

date for a hearing on the motion. According to the court’s online 

reservation system, the soonest available date for a hearing on an 

anti-SLAPP motion was February 22, 2019, or more than 30 days 

after defendants served the motion. Defense counsel also spoke to 

the court clerk, who confirmed that the soonest the court could 

hear the anti-SLAPP motion was in February 2019. 

On February 14, 2019, after her opposition was due, 

Koerber requested and received a continuance of the hearing on 

defendants’ anti-SLAPP motion and an extension of time for 

filing her opposition. The court ordered Koerber to file her 

opposition “no later than February 26, 2019.” Koerber did not file 

her opposition until March 11, 2019.

In her opposition, Koerber argued that defendants’ antiSLAPP motion was untimely because it was not filed within 60 

days of when Koerber first tried to serve defendants with the 

summons and complaint—i.e., between early September and late 

December 2017. Koerber claimed that although she agreed to 

withdraw her original proofs of service and effectuate service 

through the acknowledgement of receipt forms that she sent 

defendants in May 2018, she did so only for the purpose of 

allowing defendants additional time to file responsive pleadings, 

such as a demurrer or an answer, but not an anti-SLAPP motion. 
13

Koerber also argued that the court lacked jurisdiction to rule on 

the anti-SLAPP motion because the court did not hear the motion 

within 30 days of when it was filed.

On April 22, 2019, the court heard argument on defendants’ 

anti-SLAPP motion. On May 14, 2019, the court issued its 

written ruling on the motion. The court found that defendants 

timely filed their anti-SLAPP motion, and, in any event, any late 

filing was excused based on the “ambiguity in the parties’ 

stipulation regarding the effect of service by notice and 

acknowledgement of receipt.” The court also found it was proper 

to hear the motion more than 30 days after the motion was filed 

due to “congestion” in the court’s docket and Koerber’s own 

conduct.

2. Defendants’ anti-SLAPP motion was timely, and, in any 

event, the court properly excused any delay.

An anti-SLAPP motion “may be filed within 60 days of the 

service of the complaint or, in the court’s discretion, at any later 

time upon terms it deems proper.” (§ 425.16, subd. (f).) The 

plaintiff bears the burden of establishing the court abused its 

discretion in allowing the defendant to file a late anti-SLAPP 

motion. (Hoang v. Tran (2021) 60 Cal.App.5th 513, 526.) As we 

explain, defendants timely filed their anti-SLAPP motion.

In January 2018, at defense counsel’s request, Koerber

agreed to withdraw the proofs of service that she filed in 

November and December 2017. In early May 2018, Koerber’s 

counsel sent defendants “Notice and Acknowledgment of Receipt” 

forms. Each form indicated defendants received the summons, 

the complaint, and other documents and stated that the 

“summons and other documents identified ... are being served 
14

pursuant to section 415.30 of the California Code of Civil 

Procedure.” (Italics added.) 

Section 415.30 governs service of summons by mail. Under 

subdivision (c) of that statute, service “is deemed complete on the 

date a written acknowledgement of receipt of summons is 

executed, if such acknowledgement thereafter is returned to 

sender.” (§ 415.30, subd. (c).) 

Defendants signed Koerber’s acknowledgement of receipt 

forms on May 23, 2018, and Koerber doesn’t contend they failed 

to return those forms to her. Thus, under section 415.30, 

subdivision (c), service of the complaint was deemed complete on 

May 23, 2018. Defendants, therefore, had 60 days from that date 

to timely file their anti-SLAPP motion. Because defendants filed 

their anti-SLAPP motion on July 19, 2018, their motion was 

timely. 

Koerber insists she agreed to withdraw her original proofs 

of service and send defendants the acknowledgment of receipt 

forms for the limited purpose of extending the time to file

“responsive pleadings,” such as an answer or a demurrer. 

According to Koerber, she never agreed to extend the time to file 

an anti-SLAPP motion beyond 60 days from the date she first 

attempted to serve defendants—i.e., between September and 

December 2017. Since defendants did not file their anti-SLAPP 

motion until July 2018, or more than 60 days after Koerber 

initially attempted to serve the last defendant, Koerber argues 

that motion was untimely. We disagree.

To be sure, defense counsel noted in his January 9, 2018 

email that the deadline for defendants to file any responsive 

pleadings to Koerber’s complaint would be determined by the 

date defendants returned the acknowledgment of receipt forms. 
15

But nothing in the correspondence between defense counsel and 

Koerber’s counsel indicates the parties intended for the execution 

of the acknowledgement of receipt forms to determine only the 

time for defendants to file responsive pleadings such as a 

demurrer or an answer. 

In any event, as the court explained below, the 

correspondence between defense counsel and Koerber’s counsel 

created, at most, an ambiguity as to whether the parties intended 

the date of service of the summons and complaint by execution of 

the acknowledgment of receipt forms to apply only to responsive 

pleadings or to all other filings, including an anti-SLAPP motion. 

Because the parties never explicitly agreed to use the new service 

date only for purposes of filing a responsive pleading, such as a

demurrer or an answer, defendants reasonably could have 

believed the time for filing an anti-SLAPP motion was 

determined by the date they signed the acknowledgement of 

receipt forms. (See § 415.30, subd. (c).) Thus, even if defendants 

did not file their anti-SLAPP motion within 60 days of when 

Koerber first attempted to serve defendants with the complaint, 

the court did not abuse its discretion in considering the motion.

(See Hoang v. Tran, supra, 60 Cal.App.5th at p. 526 [court did 

not abuse its discretion in crediting defendant’s mistaken but 

reasonable belief that he timely filed his anti-SLAPP motion].)

3. The court did not err in hearing defendants’ antiSLAPP motion more than 30 days after it was filed.

Under section 425.16, subdivision (f), the court clerk must 

schedule a hearing on an anti-SLAPP motion “not more than 30 

days after the service of the motion unless the docket conditions 

of the court require a later hearing.” 
16

As defense counsel testified, defendants tried to schedule a 

hearing on their motion within 30 days of the date it was filed—

i.e., July 19, 2018—but the first hearing for an anti-SLAPP 

motion that was available through the court’s online reservation

system was not until February 2019. Defense counsel also spoke 

to the court clerk, who confirmed that the court did not have any 

dates available for a hearing on an anti-SLAPP motion earlier 

than February 2019. Additionally, in its ruling on the antiSLAPP motion, the court explained that it was “well aware of the 

congestion of its own motion calendar, especially for summary 

judgments and anti-SLAPP motions, and the wait-time of 

approximately six months for the soonest available hearing date 

for such motions. In light of this congestion, any ex parte 

application by [defendants] to advance the hearing on the instant 

motion would have been futile.”

In short, the court’s docket conditions required a hearing 

later than 30 days after defendants filed their anti-SLAPP 

motion. The court, therefore, properly heard defendants’ motion. 

(§ 425.16, subd. (f).)

Evidentiary Rulings

Koerber also challenges the court’s evidentiary rulings, 

arguing the court erred when it sustained over 100 of defendants’ 

objections to evidence Koerber submitted in opposition to the 

anti-SLAPP motion. As we explain, Koerber has forfeited any 

challenge to the court’s evidentiary rulings because she (1) fails 

to identify any specific evidence the court purportedly excluded in 

error, and (2) fails to develop any meaningful factual and legal 

analysis addressing the court’s rulings. 

It is fundamental that a trial court’s ruling “is presumed to 

be correct, and the appellant has the burden to prove otherwise 
17

by presenting legal authority on each point made and factual 

analysis, supported by appropriate citations to the material facts 

in the record; otherwise, the argument may be deemed forfeited.” 

(Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655–656 (Keyes).) 

The appellant has the burden to support claims of error with 

citations to the record and pertinent legal authority and to

explain the relevance of facts cited in her brief. (Ibid.; Bains v. 

Moores (2009) 172 Cal.App.4th 445, 455 (Bains).) The court has 

no obligation “ ‘ “to cull the record for the benefit of the 

appellant.” ’ ” (Bains, at p. 455; see also Keyes, at pp. 655–656.) 

The appellant forfeits any points that are not properly raised or 

that are not supported by cognizable legal argument and factual 

analysis. (Keyes, at pp. 655–656.)

Here is an example that illustrates the deficiencies in

Koerber’s argument challenging the court’s evidentiary rulings. 

Koerber argues that “[t]o the extent that the Trial Court 

sustained Defendants’ objections that the Declaration of Koerber 

[string citation to nearly 100 pages of defendants’ objections to 

Koerber’s declaration] and [Koerber’s counsel] [string citation to 

nearly 80 pages of defendants’ objections to counsel’s 

declaration], lack personal knowledge of the matters to which 

they testified, and/or that their testimony lacks foundation and/or 

constitutes hearsay or are otherwise inadmissible ... , the Order 

must be reversed.” Koerber then cites several authorities 

generally defining the “personal knowledge” requirement, before 

asserting: “In their declarations, Koerber and [counsel] testify 

that the declarations are made on their own personal knowledge 

of the facts. ... As such, the evidence to which Koerber and 

[counsel] testify is admissible.”
18

Koerber fails to discuss any specific evidence or statement 

that she believes the court erroneously excluded, let alone any 

objections that formed the basis for the court’s rulings. Instead, 

she cites to nearly 200 pages of defendants’ objections to her and 

her counsel’s declarations, apparently expecting us to “cull” the 

record to determine which rulings she is challenging. That is not 

our job. (Bains, supra, 172 Cal.App.4th at p. 455.) Koerber also 

offers no factual analysis to support her argument. That is, she 

doesn’t identify any of the statements for which she or her 

counsel had personal knowledge of the underlying facts. Nor does 

Koerber explain how she or her counsel obtained personal 

knowledge of any of the facts to which they testified. (Keyes, 

supra, 189 Cal.App.4th at pp. 655–656.)

Koerber also claims the court erred in excluding documents 

attached to her counsel’s declaration. We disregard this 

argument because Koerber doesn’t identify the documents she 

claims were erroneously excluded. (Bains, supra, 172 Cal.App.4th 

at p. 455 [the appellant must explain the relevance of facts cited 

in her brief].)

In short, Koerber fails to develop any cognizable argument 

challenging the court’s evidentiary rulings. Koerber has, 

therefore, forfeited any challenge to those rulings.

The Ruling on the Merits of the Anti-SLAPP Motion

Both parties challenge the court’s ruling on the merits of 

defendants’ anti-SLAPP motion. Koerber contends the court 

erred in finding her claims arise out of activity protected by the 

anti-SLAPP statute and, in any event, she demonstrated a 

probability of success on the merits of all her causes of action. In 

their cross-appeal, defendants argue the court erred in finding 

Koerber was likely to prevail on her causes of action for 
19

defamation and unfair business practices. As we explain, the 

court’s ruling on the anti-SLAPP motion was correct.

1. Legal Principles and Standard of Review

Under the anti-SLAPP statute, a defendant may move to 

strike claims “ ‘arising from any act ... in furtherance of the 

[defendant’s] right of petition or free speech under the United 

States Constitution or the California Constitution in connection 

with a public issue.’ ” (Wilson v. Cable News Network, Inc. (2019) 

7 Cal.5th 871, 884.) Section 425.16 does not completely insulate a 

defendant’s protected speech but instead provides a mechanism 

“for weeding out, at an early stage, meritless claims arising from” 

protected activity. (Baral v. Schnitt (2016) 1 Cal.5th 376, 384

(Baral).) 

Courts apply a two-prong test when evaluating an antiSLAPP motion. (Baral, supra, 1 Cal.5th at p. 384.) “First, the 

defendant must establish that the challenged claim arises from 

activity protected by section 425.16.” (Ibid.) To determine 

whether the plaintiff’s causes of action arise from the defendant’s 

protected activity, we look at the “pleadings, and supporting and 

opposing affidavits stating the facts upon which the liability or 

defense is based.” (§ 425.16, subd. (b)(2); see also Equilon 

Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)

If the defendant establishes the plaintiff’s claims arise out 

of protected activity, the plaintiff must demonstrate a probability 

of prevailing on her claims. (Baral, supra, 1 Cal.5th at p. 384.) To 

do so, the plaintiff must make a prima showing of facts to sustain 

a favorable judgment. (Wong v. Jing (2010) 189 Cal.App.4th 

1354, 1368 (Wong).) As part of her burden, the plaintiff must 

present evidence that would be admissible at trial and cannot 
20

rely “on the allegations in the complaint or assertions in a 

declaration based on information and belief.” (Baral, at p. 384.) 

For the second prong, the court conducts an analysis akin 

to evaluating a summary judgment motion. (Baral, supra, 1 

Cal.5th at p. 384.) “The 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. 

[The court] 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.” (Id. at pp. 384–385.) If the 

plaintiff makes a prima facie showing of a likelihood of success, 

the court should deny the anti-SLAPP motion unless, as a matter 

of law, the defendant’s evidence defeats the plaintiff’s claim. 

(Wong, supra, 189 Cal.App.4th at p. 1368.)

We independently review an order granting a special 

motion to strike under section 425.16. (Paulus v. Bob Lynch Ford, 

Inc. (2006) 139 Cal.App.4th 659, 672 (Paulus).) “ ‘ “[W]e engage in 

the same, two-step process as the trial court to determine if the 

parties have satisfied their respective burdens. [Citations.] If the 

defendant fails to show that the lawsuit arises from protected 

activity, we affirm the trial court’s ruling and need not address 

the merits of the case under the second prong of the statute.” ’ 

[Citation.]” (Abuemeira v. Stephens (2016) 246 Cal.App.4th 1291, 

1298 (Abuemeira).)5

5 On September 2, 2022, after the parties filed their briefs, Koerber 

submitted a letter brief directing our attention to the California 

Supreme Court’s recent decision in Serova v. Sony Music 

Entertainment (2022) 13 Cal.5th 859. On September 6, 2022, 

defendants submitted a letter brief directing our attention to the 
21

2. The commercial speech exemption does not apply to 

Koerber’s claims. 

Koerber contends her claims against defendants are 

exempt from the anti-SLAPP statute under section 425.17, 

subdivision (c). According to Koerber, all her claims arise solely 

out of defendants’ “commercial speech.” We disagree.

Under section 425.17, subdivision (c), commercial speech is 

not protected by the anti-SLAPP statute. (Simpson Strong-Tie

Co., Inc. v. Gore (2010) 49 Cal.4th 12, 22 (Simpson).) For a claim 

to fall under the commercial speech exemption, the following 

requirements must be met: (1) the moving party was primarily 

engaged in the business of selling goods or services; (2) the 

moving party’s challenged conduct was a representation of fact 

about its operations or services, intended to obtain or promote 

sales of the moving party’s goods or services; and (3) the moving 

party’s intended audience was an actual or potential customer. (§ 

425.17, subd. (c); Simpson, at p. 23.) 

The party seeking to avoid application of the anti-SLAPP 

statute bears the burden of proving the commercial speech

exemption applies. (Simpson, supra, 49 Cal.4th at pp. 22–25.)

Courts narrowly construe this exemption. (Id. at p. 22.)

Koerber cites to no admissible evidence that would support 

a finding that defendants are “primarily engaged in the business 

of selling goods or services.” (§ 425.17, subd. (c).) Rather, she 

relies primarily on allegations in her complaint and statements 

from her counsel’s declaration that were excluded by the trial 

court to claim defendants consist of for-profit corporations who 

Supreme Court’s recent decision in Geiser v. Kuhns (2022) 13 Cal.5th 

1238.
22

primarily engage in the sales of goods or services “by posting 

commercial online content advertising themselves and Defendant 

O’Keefe.” But allegations in Koerber’s complaint are not evidence. 

(See Schoendorf v. U.D. Registry, Inc. (2002) 97 Cal.App.4th 227, 

236 [in opposing an anti-SLAPP motion, the plaintiff “cannot 

simply rely on the allegations in its own pleadings” to make the 

required evidentiary showing].) And, as we explained above, 

Koerber has failed to show the court erred in excluding any of the 

evidence she submitted in support of her opposition to 

defendants’ anti-SLAPP motion. In any event, as the court found, 

defendants presented evidence that Project Veritas and Action 

Fund are “non-profit” media organizations that engage in 

“undercover investigative journalism.” 

Koerber also failed to show that O’Keefe’s statements in the

September 2017 Video constitute a representation of fact about 

defendants’ operations or services, intended to obtain or promote 

sales of defendants’ goods or services. (§ 425.16, subd. (c).)

O’Keefe does not reference any goods that defendants were 

promoting for sale. And although O’Keefe told viewers to stay 

tuned for more videos because defendants intended to release 

additional material on their “American Pravda” series, O’Keefe 

never solicited the sale of any goods or services related to that 

series or any of the organization’s other projects. 

In short, nothing in the record suggests O’Keefe’s 

statements in the September 2017 Video were made to induce the 

purchase of any goods or services. (Jams, Inc. v. Superior Court

(2016) 1 Cal.App.5th 984, 997 [“The issue is whether or not the 

statement or conduct from which the causes of action arise is 

speech used to induce a commercial transaction.”].) Thus, the 
23

court properly found Koerber’s claims against defendants are not 

exempt from the anti-SLAPP statute.

3. Koerber’s claims arise out of Project Veritas’s 

protected activity.

Next, Koerber argues none of her claims arise out of 

activity protected by the anti-SLAPP statute. According to 

Koerber, O’Keefe’s statements about her in the September 2017 

Video did not relate to any “public issues” and, as a result, are 

not entitled to anti-SLAPP protection. We reject this argument as 

well.

Among other types of conduct, section 425.16, subdivision 

(e) protects “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.” (§ 425.16, subd. (e)(2).) To qualify 

for protection under section 425.16, subdivision (e)(2), the moving 

party “need not separately demonstrate that the statement 

concerned an issue of public significance.” (Sipple v. Foundation 

For Nat. Progress (1999) 71 Cal.App.4th 226, 236–237.) Rather, it 

is sufficient for the challenged statement to have been made as 

part of a report or article commenting on an official proceeding, 

such as a lawsuit. (Id. at pp. 237–238; see also Bernstein v. 

LaBeouf (2019) 43 Cal.App.5th 15, 25 [“[j]udicial proceedings, by 

definition, are matters of public interest under the anti-SLAPP 

statute”].) Thus, reports of judicial proceedings, including reports 

appearing on websites, “are an exercise of free speech within the 

meaning of section 425.16.” (Traditional Cat Assn., Inc. v. 

Gilbreath (2004) 118 Cal.App.4th 392, 397–398 (Gilbreath); see 

e.g., Sipple, at pp. 236–238; Lafayette Morehouse, Inc. v. 

Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, 863 
24

[“colorful” statements made in articles about ongoing lawsuits 

were protected as “ ‘writings made in connection with an issue 

under consideration or review by a legislative, executive, or 

judicial body’ ”].) 

All of Koerber’s claims in this lawsuit arise out of

statements O’Keefe made in a video report about lawsuits filed 

against defendants, including Koerber’s first lawsuit against 

them. After watching the video, it is clear that O’Keefe made the 

complained-of statements as part of his commentary on Koerber’s 

first lawsuit, which at the time the video was released, was still 

pending against defendants. Since O’Keefe’s statements in the 

September 2017 Video were made as part of a report about 

judicial proceedings that was published on various websites, they 

qualify as protected speech under section 425.16, subdivision 

(e)(2). (Gilbreath, supra, 118 Cal.App.4th at pp. 397–398.)

O’Keefe’s statements in the September 2017 Video also 

qualify as protected speech under section 425.16, subdivision 

(e)(3), which protects “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.” (§ 425.16, subd. (e)(3).) Websites

such as YouTube, Twitter, and Facebook, where the September 

2017 Video was published, qualify as “public forums” under the 

anti-SLAPP statute. (Jackson v. Mayweather (2017) 10 

Cal.App.5th 1240, 1252 [websites accessible to the public are 

“public forums” under the anti-SLAPP statute].) Additionally, by 

the time the video was published, Project Veritas’s investigation 

into Common Core and the various lawsuits filed against the 

organization arising out of its conduct during that investigation 

had been covered by various news agencies in written and 

televised reports. Thus, O’Keefe’s statements commenting on the 
25

lawsuits arising out of Project Veritas’s Common Core 

investigation, including Koerber’s first lawsuit against the 

organization, addressed a matter of public interest. (See 

Symmonds v. Mahoney (2019) 31 Cal.App.5th 1096, 1109 [news 

coverage of an issue is a factor in determining whether the issue 

is in the public interest].)

Thus, Koerber’s claims against defendants fall within the 

scope of the anti-SLAPP statute. 

4. Koerber hasn’t demonstrated a probability of 

prevailing on the merits of her claims for IIED, 

negligence, and economic interference.

Koerber contends the court erred when it dismissed her

cause of action for IIED because that claim was superfluous to 

Koerber’s cause of action for defamation. We disagree.

“When claims for invasion of privacy and emotional distress 

are based on the same factual allegations as those of a 

simultaneous libel claim, they are superfluous and must be 

dismissed.” (Couch v. San Juan Unified School Dist. (1995) 33 

Cal.App.4th 1491, 1504.)

Koerber’s claims for IIED and defamation are based on 

identical factual allegations, and Koerber does not argue to the 

contrary. That is, Koerber points to no factual allegations 

supporting her IIED claim that do not also form the basis for her 

defamation claim. The court, therefore, properly dismissed

Koerber’s IIED claim as redundant of her defamation claim. (See

Couch v. San Juan Unified School Dist., supra, 33 Cal.App.4th at 

p. 1504.)6

6 Some courts have held that a superfluous cause of action for IIED 

should be dismissed through a demurrer instead of through an anti-
26

In any event, Koerber hasn’t shown she was likely to 

prevail on her claim for IIED. To prove IIED, a plaintiff must 

establish: (1) outrageous conduct by the defendant; (2) the 

defendant’s intent to cause, or reckless disregard of the 

probability of causing, emotional distress; (3) the plaintiff’s 

suffering of severe or extreme emotional distress; and (4) actual 

and proximate causation of the emotional distress by the 

defendant’s outrageous conduct. (Yau v. Allen (2014) 229 

Cal.App.4th 144, 160.) To be outrageous, conduct must be “ ‘so 

extreme as to exceed all bounds of that usually tolerated in a 

civilized society.’ ” (Ibid.) 

Koerber offers no cognizable factual or legal argument 

explaining how she was likely to prevail on her claim for IIED. In 

her opening brief, Koerber argues only that her “[d]eclaration is 

sufficient to meet the minimal merit standard ... , and the Trial 

Court’s ruling must be reversed.” In her reply brief, Koerber 

points to statements in her declaration where she asserts she 

SLAPP motion. (See Dickinson v. Cosby (2017) 17 Cal.App.5th 655, 

692.) As we noted above, defendants filed a demurrer to Koerber’s 

complaint when they filed their anti-SLAPP motion. Koerber, however, 

has not included a copy of that demurrer in the appellate record. We 

therefore must presume defendants also raised this argument in their 

demurrer and, had the court not first ruled on the anti-SLAPP motion, 

it would have sustained without leave to amend the challenge to 

Koerber’s IIED claim when it ruled on the demurrer. (Fernandes v. 

Singh (2017) 16 Cal.App.5th 932, 935, fn. 3 [“ ‘To the extent the record 

is incomplete, we construe it against [the appellant]’ ”].) In any event, 

Koerber hasn’t shown, let alone argued, she was prejudiced by the 

court dismissing her IIED claim through the anti-SLAPP motion as 

opposed to through the demurrer. (Cal. Const., art. VI, § 13; see also § 

475 [no decision shall be set side unless the appellant establishes the 

alleged error was prejudicial].)
27

suffered various physical and psychological injuries because of 

the September 2017 Video, while asserting in conclusory fashion 

that “[t]here can be no dispute that Defendants’ defamatory 

statements constitute extreme and outrageous conduct.” Because 

Koerber offers no meaningful legal or factual analysis explaining

how she could prove the first and second elements of her IIED 

claim—i.e., outrageous conduct and intent—she hasn’t shown she 

was likely to prevail on that cause of action. (See Paulus, supra,

139 Cal.App.4th at p. 685 [appellant forfeited argument 

challenging court’s second-prong finding where he offered only a 

conclusory argument that he had “met his burden to show a 

prima [facie] case”].)

As to her causes of action for negligence and economic 

interference, Koerber also hasn’t shown she was likely to prevail 

on the merits of those claims. 

To prevail on a claim for negligence, a plaintiff must prove 

that (1) the defendant owed her a duty of care, (2) the breach of 

which (3) proximately caused (4) her injury. (Quelimane Co. v. 

Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 57.) Koerber 

claims she satisfied her burden to show a likelihood of prevailing 

on her negligence claim because her “evidence establishes 

Defendants’ defamatory statements breached their duty of due 

care, which breach caused Koerber significant damages. ... This 

is more than sufficient to establish a prima facie case of 

negligence, and a probability of prevailing on this claim.” (Italics 

omitted.) 

Koerber fails to identify what “evidence” establishes the 

elements of breach, proximate cause, and injury, nor does she 

develop any meaningful factual or legal analysis explaining how

she was likely to satisfy those elements. Consequently, Koerber 
28

has forfeited her challenge to the court’s finding that she wasn’t 

likely to prevail on her claim for negligence. (Paulus, supra, 139 

Cal.App.4th at p. 685.)

Koerber’s argument addressing her economic interference 

cause of action doesn’t fare any better. To prevail on a claim for 

economic interference, a plaintiff must prove: (1) an economic 

relationship between the plaintiff and a third party that offers a

probability of future economic benefit to the plaintiff; (2) the 

defendant’s knowledge of the relationship; (3) intentional acts on 

the part of the defendant intended to disrupt the relationship; (4) 

actual disruption of the relationship; and (5) economic harm to 

the plaintiff proximately caused by the defendant’s acts. (Korea 

Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 

1153.) 

Koerber doesn’t offer any legal argument or factual 

analysis explaining how she was likely to satisfy the second and 

third elements of her cause of action for economic interference. 

That is, Koerber doesn’t explain how she could prove that

defendants knew about Koerber’s relationship with any 

prospective employers or that the publication of the September 

2017 Video, including any of the challenged statements from that 

video, were intended to disrupt Koerber’s relationship with a 

prospective employer. Koerber, therefore, hasn’t shown the court 

erred when it found she wasn’t likely to prevail on her claim for 

economic interference. (Paulus, supra, 139 Cal.App.4th at p. 685.)
29

5. Koerber demonstrated a probability of prevailing on 

the merits of her causes of action for defamation and 

unfair business practices (Defendants’ Cross-Appeal).

In their cross-appeal, defendants contend the court erred in 

finding Koerber met her second-prong burden with respect to her 

claims for defamation and unfair business practices. We disagree.

5.1. Defamation

Defamation involves (1) a publication that is (2) false, (3) 

defamatory, (4) unprivileged, and (5) has a natural tendency to 

injure or cause special damage. (Wong, supra, 189 Cal.App.4th at 

p. 1369.) A statement is libelous if it is a false and unprivileged 

publication that exposes the plaintiff “to hatred, contempt, 

ridicule, or obloquy,” or causes her “to be shunned or avoided,” or 

jeopardizes her employment. (Civ. Code, § 45; McGarry v. 

University of San Diego (2007) 154 Cal.App.4th 97, 112 

(McGarry).) 

The primary question for a defamation claim is whether the 

published statement declares or implies a provably false 

assertion of fact. (Wong, supra, 189 Cal.App.4th at p. 1370.) 

Because the actionable statement in a defamation claim must 

include a falsehood, courts distinguish between statements of fact 

and statements of opinion. (Ibid.) Statements of fact may be 

actionable, while statements of opinion generally are not. (Ibid.) 

But statements of opinion aren’t always immune from liability. If 

an opinion implies a false assertion of fact, the opinion may be 

actionable defamation. (Ibid.) Thus, courts look to whether a 

reasonable fact finder could conclude the challenged statement 

declares or implies a provably false assertion of fact. (Ibid.)

Courts look to the totality of the circumstances to 

determine whether a statement communicates or implies a 
30

provably false statement of fact. (McGarry, supra, 154 

Cal.App.4th at p. 113.) Courts must examine the language used 

in the statement and the context in which the statement was 

made. (Ibid.) When the complained-of speech concerns a matter of 

public interest, “a private-figure plaintiff must prove the falsity of 

the offensive speech.” (ZL Technologies, Inc. v. Does 1–7 (2017) 13 

Cal.App.5th 603, 631 (ZL Technologies).)

Koerber’s defamation cause of action arises out of O’Keefe’s 

statements in the September 2017 Video implying that Koerber 

was an “official” in the book publishing industry who said she 

does not “care about kids[;] it’s all about money” during an 

investigation into the Common Core curriculum. As we explain, 

Koerber has shown a probability of success on her defamation 

cause of action.

As a preliminary matter, defendants contend that O’Keefe’s 

statement that Koerber was an “official” cannot support a 

defamation claim because, even assuming the statement was 

false, it is not defamatory in nature. Thus, accordingly to 

defendants, allegations referring to that statement should be 

stricken from Koerber’s pleading. To be sure, we agree there is

generally nothing defamatory about falsely referring to a person 

as an “official.” Nevertheless, the court wasn’t required to strike 

Koerber’s allegations that O’Keefe falsely referred to her as an 

“official” because those allegations provide context for her 

allegations that she was also falsely accused by O’Keefe of saying 

that she does not “care about kids[;] it’s all about money.” (See

Baral, supra, 1 Cal.5th at p. 394 [“[a]llegations of protected 

activity that merely provide context, without supporting a claim 

for recovery, cannot be stricken under the anti-SLAPP statute”]; 

see also Wong, supra, 189 Cal.App.4th at p. 1370 [context is 
31

relevant to determining whether a challenged statement supports 

a claim for defamation].)

As for O’Keefe’s statement implying Koerber was the 

person who said, “we don’t care about kids[;] it’s all about 

money,” it supports Koerber’s defamation claim. O’Keefe’s 

statement was factual in nature—i.e., it attributed a quote to 

Koerber—and it was used to describe to viewers one of the topics 

of the September 2017 Video—i.e., Koerber’s first lawsuit against 

defendants. Nothing about the context surrounding the 

statement suggests it was offered as O’Keefe’s subjective opinion 

about Koerber or her prior lawsuit.

The surrounding context also supports an inference that 

O’Keefe intended viewers to believe Koerber was the person who 

said, “we don’t care about kids[;] it’s all about money.” As O’Keefe 

makes that statement, a photograph of the cover page of a motion 

filed in Koerber’s first lawsuit against defendants appears on the 

right side of the screen while O’Keefe holds a copy of Koerber’s 

complaint from that lawsuit. Immediately thereafter, while a 

zoomed-in photograph of Koerber’s complaint with a sticky note 

containing her name is the only thing visible on screen, O’Keefe 

says, “one of the people in the book publishing industry has sued 

us. I don’t know why she’s suing us. She should sue herself; she’s 

the one who said what she said, and she didn’t deny it.” Notably, 

O’Keefe never attributes the statement “we don’t care about 

kids[;] it’s all about money” to someone other than Koerber, nor 

does he tell the viewers that Koerber did not make that 

statement. The circumstances of the video, therefore, support an

inference that O’Keefe intended his viewers to believe that 

Koerber was the person who said, “we don’t care about kids[;] its 

all about money.” (Wong, supra, 189 Cal.App.4th at p. 1372 [a 
32

defendant is “ ‘liable for what is insinuated, as well as for what is 

stated explicitly’ ”]; see also Kapellas v. Kofman (1969) 1 Cal.3d 

20, 33 [“false inferences or implications raised by the 

arrangement and phrasing of apparently non-libelous statements 

can be as injurious as explicit epithets”].)

Koerber also met her burden to show the statement was

false. Koerber testified that she never said, “we don’t care about 

kids[;] it’s all about money.” And, in support of their anti-SLAPP 

motion, defendants submitted a copy of the January 2016 Video, 

in which two people—neither of whom is Koerber—make similar 

statements. One interviewee states: “I hate kids. I’m in it to sell 

books, don’t even kid yourself for a heartbeat.” The other 

interviewee states: “There’s always money in it. It’s never about 

the kids.” Like the September 2017 Video, O’Keefe appears in 

and narrates the January 2016 Video. The evidence, therefore, 

supports a finding that O’Keefe knew Koerber didn’t say “we 

don’t care about kids[;] it’s all about money” (or a statement to 

the same effect) or that he, at the very least, acted with reckless 

disregard for the truth when he attributed that statement to 

Koerber. (See ZL Technologies, supra, 13 Cal.App.5th at p. 631 

[actual malice exists where defendant knew the complained-of 

speech was false or acted with reckless disregard of whether it 

was false].)

Moreover, implying Koerber stated that she cares only 

about money, and not kids, is defamatory. That is, implying that 

someone who worked in the education industry doesn’t care about 

kids and cares only about money is likely to, at the very least, 

harm that person’s professional reputation. (Balla v. Hall (2021) 

59 Cal.App.5th 652, 678 [a statement is defamatory if it tends to 
33

injure the plaintiff’s reputation]; see also Civ. Code, § 46, subd. 

(3).)

Koerber also presented evidence that she was injured by 

O’Keefe’s statements in the September 2017 Video. In her 

declaration, Koerber testified that because of that video, she “lost 

contracts, income, benefits, 401k contributions, health insurance, 

car, phone, email, vacation and bonuses, and [has] become 

extremely emotionally distressed and physically ill.” 

Finally, we reject defendants’ contention that O’Keefe’s 

statements in the September 2017 Video are immune from 

liability under the litigation privilege. Under Civil Code section 

47, subdivision (b), a privileged statement is one that is (1) made 

in judicial or quasi-judicial proceedings; (2) by litigants or other 

participants authorized by law; (3) to achieve the objects of the 

litigation; and (4) that have some connection or logical relation to 

the action. (See Abuemeira, supra, 246 Cal.App.4th at p. 1299.) 

The litigation privilege is designed to give litigants and witnesses 

the “utmost freedom of access to the courts without fear of 

litigation reprisal.” (Ibid.) 

The litigation privilege does not, however, protect 

statements made to persons who are not participants in the 

underlying litigation, such as “publications to the general public 

through the press.” (Abuemeira, supra, 246 Cal.App.4th at p. 

1299.) As other courts have recognized, litigating through the 

press does not fall within the spirit of the litigation privilege but 

instead “serves no purpose other than to provide immunity to 

those who would inflict damage upon the judiciary.” (Ibid.; see 

also GetFugu, Inc. v. Patton Boggs LLP (2013) 220 Cal.App.4th 

141, 153.) 
34

The September 2017 Video was not produced for any 

judicial or quasi-judicial proceeding. (See Civ. Code, § 47, subd. 

(b).) Instead, the video was published on Action Fund’s website 

and other websites and social media platforms where it could be 

viewed by the general public. (Abuemeira, supra, 246 Cal.App.4th 

at p. 1299 [defendant’s “communications to the general public 

through the Internet and the media are not protected by the 

litigation privilege”].) Defendants present no evidence that the 

video’s intended audience was in any way connected with 

Koerber’s first lawsuit or that the video was otherwise intended 

to achieve any legitimate objective in that litigation. (Id. at pp. 

1299–1300 [anti-SLAPP defendants carried burden to show 

litigation privilege barred plaintiff’s lawsuit because the 

challenged statements were directed at interested persons or 

designed to achieve objectives of litigation].)7

For these reasons, Koerber met her burden to demonstrate 

a probability of prevailing on her defamation cause of action.

5.2. Unfair Business Practices

Business and Professions Code section 17200 (Section 

17200) prohibits “any unlawful, unfair or fraudulent business act 

or practice.” A prevailing plaintiff under Section 17200 is 

7 Defendants also claim O’Keefe’s statements in the September 2017 

Video are protected by the “fair and true” reporting privilege. (See Civ. 

Code, § 47, subd. (d).) Defendants have forfeited this contention 

because they didn’t assert the fair and true reporting privilege in their 

anti-SLAPP motion or reply papers. (Kern County Dept. of Child 

Support Services v. Camacho (2012) 209 Cal.App.4th 1028, 1038 [“It is 

axiomatic that arguments not raised in the trial court are forfeited on 

appeal.”].)
35

generally limited to injunctive relief and restitution. (Gray v. 

Dignity Health (2021) 70 Cal.App.5th 225, 236.) 

A business act is unlawful under Section 17200 if it violates 

any other law. (Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 

1505.) Thus, “[b]y defining unfair competition to include any 

‘unlawful ... business act or practice’ [citation], [Section 17200] 

permits violations of other laws to be treated as unfair 

competition that is independently actionable.” (Kasky v. Nike, 

Inc. (2002) 27 Cal.4th 939, 949 (Kasky).) In other words, virtually 

any state or federal law can serve as a predicate for an action 

under Section 17200. (Hale v. Sharp Healthcare (2010) 183 

Cal.App.4th 1373, 1383; see also Klein v. Chevron U.S.A.,

Inc. (2012) 202 Cal.App.4th 1342,1380 [a business practice is 

“fraudulent” within the meaning of Section 17200 if it is likely to 

deceive the public or is based on representations to the public

which are untrue].)

A private plaintiff can bring a claim for unfair business 

practices under Section 17200. (Kasky, supra, 27 Cal.4th at p. 

949.) To have standing, a private plaintiff must show she suffered 

“injury in fact and has lost money or property as a result of the 

unfair” business practice. (Ibid.)

As we just explained, Koerber demonstrated a likelihood of 

success on her defamation claim against defendants, including 

showing that the September 2017 Video caused her to suffer 

economic loss. Additionally, Verney, Project Veritas’s and Action 

Fund’s executive director, testified that Action Fund released the 

September 2017 Video through its president, O’Keefe. Nothing in 

the record suggests that the publication and release of the 

September 2017 Video was not a business act or practice of 

Project Veritas, Action Fund, or O’Keefe. And although 
36

defendants contend on appeal that the court “failed to consider in 

the first instance whether the allegedly-defamatory statement 

made by O’Keefe constituted an actual business practice of each” 

defendant, that contention is conclusory and not developed in 

their briefing. Koerber, therefore, has shown a likelihood of 

prevailing on her claim for unfair business practices under 

Section 17200. (See Becerra v. McClatchy Co. (2021) 69 

Cal.App.5th 913, 951 [where an unfair business practices claim 

“is derivative of an underlying violation of law, it must stand or 

fall with the underlying claim”].)8

Attorney Fees and Costs

Finally, Koerber challenges the court’s order awarding 

defendants attorney fees and costs. As we explain, Koerber’s 

arguments challenging the fees and costs award lack merit.

1. Relevant Background

In July 2019, defendants filed a motion for $44,422 in 

attorney fees and costs (fees motion), arguing they were 

prevailing parties under the anti-SLAPP statute. Defendants 

claimed they incurred $34,827 in attorney fees for work 

8 We decline to address defendants’ contention that the court failed to 

strike allegations of protected activity for which Koerber did not 

demonstrate a probability of success. Defendants do not identify any 

individual allegation they claim the court should have stricken, nor do 

they offer meaningful factual or legal analysis explaining why the 

court should have stricken any individual allegation. (See Baral, 

supra, 1 Cal.5th at p. 396 [the defendant bears the burden “of 

identifying all allegations of protected activity, and the claims for relief 

supported by them”]; see also Keyes, supra, 189 Cal.App.4th at pp. 

655–656 [party claiming error on appeal forfeits any points not 

supported by cognizable legal argument or factual analysis].)
37

associated with the anti-SLAPP motion, and they incurred, or 

anticipated to incur, $8,980 in attorney fees for work associated 

with the fees motion. Defendants also sought $615 in incurred 

and anticipated costs. 

In support of their fees motion, defendants submitted

billing invoices and declarations executed by their counsel, Rubin 

and Sanguinetti, detailing the time the attorneys and one 

paralegal spent working on defendants’ anti-SLAPP and fees 

motions. The $34,827 in attorney fees related to litigating the 

anti-SLAPP motion was based on the following calculations: (1) 

Rubin billed 36.7 hours at a rate of $250 per hour, for a total of 

$9,175; (2) Sanguinetti billed 127.3 hours at a rate of $200 per 

hour, for a total of $25,460; and (3) the paralegal billed 2.4 hours 

at a rate of $80 per hour, for a total of $192. The $8,980 in 

attorney fees related to litigating the fees motion was calculated 

as follows: (1) Rubin billed 3 hours, and expected to bill an 

additional 7 hours, all at a rate of $250 per hour, for a total of 

$2,500; (2) Sanguinetti billed 22.4 hours, and expected to bill an 

additional 10 hours, all at a rate of $200 per hour, for a total of 

$6,480. According to Rubin, defendants spent $555 in filing fees 

and other costs necessary to litigate their anti-SLAPP motion and 

expected to incur an additional $60 in filing fees for their fees 

motion.

Koerber opposed the fees motion. Among other things, she

argued Hartsock wasn’t entitled to recover attorney fees or costs 

because defendants presented no evidence that Hartsock was 

personally billed for any services proffered by defense counsel. 

Koerber also claimed that Project Veritas, Action Fund, and 

O’Keefe weren’t prevailing parties under section 425.16, 

subdivision (c) or, at the very least, didn’t obtain any practical 
38

benefit from the court’s ruling on their anti-SLAPP motion 

because the court denied their motion as to her causes of action 

for defamation and unfair business practices. Finally, Koerber 

argued the court should deny defendants’ fees motion in its 

entirety because the amount of fees and costs requested by 

defendants was excessive and unreasonably inflated.

The court granted defendants’ motion, awarding them 

$40,942 in attorney fees and costs. The court found Hartsock was 

entitled to recover fees and costs even if those expenses were paid 

by a third party. The court also found Project Veritas, Action 

Fund, and O’Keefe were prevailing parties under section 425.16, 

subdivision (c) because the court’s ruling on defendants’ antiSLAPP motion narrowed the scope of Koerber’s lawsuit and her 

potential entitlement to damages. 

As to the amount of defendants’ fees request, the court 

found it was reasonable with respect to counsel’s work litigating 

the anti-SLAPP motion. But the court reduced the amount of 

attorney fees that defendants requested with respect to the fees 

motion, finding the amount of hours counsel billed, and expected 

to bill, for that motion was excessive. Specifically, the court 

awarded defendants fees for only 10 of the 22.4 hours counsel 

actually billed, and 5 of the 10 hours counsel expected to bill, for 

work related to litigating the fees motion. 

2. Applicable Law and Standard of Review

A defendant who prevails on an anti-SLAPP motion is 

entitled to an award of attorney fees and costs “incurred in 

connection with” the anti-SLAPP motion. (569 E. County 

Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 

Cal.App.5th 426, 432 (Backcountry); see also § 425.16, subd. 

(c)(1).) Thus, a prevailing defendant may recover all fees incurred 
39

in litigating the anti-SLAPP motion, plus fees incurred in 

responding to an appeal from an order granting an anti-SLAPP 

motion or in litigating the fee award itself. (Wanland v. Law 

Offices of Mastagni, Holstedt & Chiurazzi (2006) 141 Cal.App.4th 

15, 21.) 

The fee award should not, however, compensate the 

defendant for fees unrelated to the anti-SLAPP motion, such as 

“ ‘attacking service of process, preparing and revising an answer 

to the complaint, [or] summary judgment research.’ [Citation.]” 

(Backcountry, supra, 6 Cal.App.5th at p. 433.) “In short, the 

award of fees is designed to ‘ “reimburs[e] the prevailing 

defendant for expenses incurred in extracting herself from a 

baseless lawsuit” ’ [citation] rather than to reimburse the 

defendant for all expenses incurred in the baseless lawsuit.” 

(Ibid.)

In determining the amount of the fees to award, the court 

should utilize the “lodestar adjustment method.” (Nichols v. City 

of Taft (2007) 155 Cal.App.4th 1233, 1239–1240 (Nichols).) To 

calculate the “lodestar” figure, the court must determine the 

number of hours reasonably spent on matters related to the antiSLAPP motion and multiply that number by the prevailing 

hourly rate for other private attorneys in the same community 

performing similar, noncontingent litigation. (Ketchum v. Moses

(2001) 24 Cal.4th 1122, 1133.) 

Because the trial court is most familiar with the litigation

and in the best position to determine the value of the legal 

services rendered in the case, we will not disturb the court’s 

decision to award attorney fees unless we are convinced that 

decision is clearly wrong—i.e., an abuse of discretion. (Nichols, 

supra, 155 Cal.App.4th at p. 1239.) “The appellant challenging 
40

the award ‘bear[s] the burden of affirmatively establishing that 

the trial court abused its discretion.’ [Citation.] As with most trial 

court orders, we ‘ “presume the trial court’s attorney fees award 

is correct.” ’ [Citation.]” (In re Marriage of Minkin (2017) 11 

Cal.App.5th 939, 954 (Minkin).) 

3. Hartsock is entitled to recover attorney fees and costs

as a prevailing party.

As a preliminary matter, Koerber argues the court erred 

when it awarded Hartsock attorney fees and costs. Although 

Koerber doesn’t dispute Hartsock was a prevailing party under 

section 425.16, subdivision (c), she claims he can’t recover any 

attorney fees or costs because Project Veritas was the only entity 

billed for defense counsel’s services in litigating the anti-SLAPP 

and fees motions. This argument is meritless.

Under section 425.16, subdivision (c), a prevailing 

defendant is entitled to recover attorney fees and costs even if 

those expenses are paid by a third party. (Macias v. Hartwell 

(1997) 55 Cal.App.4th 669, 675–676.) As one court has explained, 

“[w]e do not presume the Legislature intended to create a 

disparity between defendants who advance their own attorney 

fees and those whose counsel look to an outside source for 

payment. In each case, the fees have accrued and can be 

recovered.” (Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 285

(Rosenaur).) Koerber cites no authority to the contrary. 

Because Hartsock was a prevailing party under section 

425.16, subdivision (c), the court properly awarded him attorney 

fees and costs. (Rosenaur, supra, 88 Cal.App.4th at p. 287.) 
41

4. Project Veritas, Action Fund, and O’Keefe are entitled 

to recover attorney fees and costs as prevailing parties.

Koerber next contends Project Veritas, Action Fund, and 

O’Keefe are not entitled to an award of attorney fees and costs 

because they obtained no practical benefit from the court’s order 

granting in part and denying in part their anti-SLAPP motion. 

We disagree.

Under section 425.16, subdivision (c), a defendant who 

partially prevails on an anti-SLAPP motion is entitled to recover 

attorney fees and costs “unless the results of the motion were so 

insignificant that the party did not achieve any practical benefit 

from bringing the motion.” (Mann v. Quality Old Time Service, 

Inc. (2006) 139 Cal.App.4th 328, 338 (Mann).) The trial court has 

broad discretion to determine whether a defendant is a 

“prevailing party” under section 425.16. (Ibid.)

In deciding how much to award a partially prevailing 

defendant, the court should consider various factors, including 

“the extent to which the defendant’s litigation posture was 

advanced by the motion, whether the same factual allegations 

remain to be litigated, whether discovery and motion practice 

have been narrowed, and the extent to which future litigation 

expenses and strategy were impacted by the motion. The fees 

awarded to a defendant who was only partially successful on an 

anti-SLAPP motion should be commensurate with the extent to 

which the motion changed the nature and character of the 

lawsuit in a practical way.” (Mann, supra, 139 Cal.App.4th at p.

345.)

The court did not abuse its discretion in finding Project 

Veritas, Action Fund, and O’Keefe were entitled to recover 

attorney fees and costs as partially prevailing defendants. While 
42

some factual issues that were relevant to the causes of action 

that the court dismissed remain the same after the court ruled on 

defendants’ anti-SLAPP motion, such as whether O’Keefe’s 

allegedly defamatory statements in the September 2017 Video 

injured Koerber, some factual issues have been eliminated. 

Consequently, the scope of the parties’ future discovery is 

narrower than it would have been had the court not dismissed 

Koerber’s economic interference claim. 

To summarize, Project Veritas, Action Fund, and O’Keefe 

obtained a practical benefit by bringing their anti-SLAPP motion 

and, as a result, are entitled to recover attorney fees and costs 

under section 425.16, subdivision (c).9 (Mann, supra, 139 

Cal.App.4th at p. 345.)

5. The fees and costs award was reasonable.

Koerber claims the court erred when it allowed defendants 

to recover attorney fees for work defense counsel performed 

litigating the anti-SLAPP and fees motions that Project Veritas 

filed in Koerber’s first lawsuit. According to Koerber, defense 

counsel “simply cut and pasted from [Project Veritas’s] prior 

fee[s] motion” and spent too much time preparing defendants’

anti-SLAPP motion when counsel prepared a similar motion in 

Koerber’s first lawsuit. This argument lacks merit.

9 Koerber doesn’t contend that even if Project Veritas, Action Fund, 

and O’Keefe were entitled to an award of attorney fees and costs, the 

court should have reduced the amount of their award using the factors 

discussed above to reflect they were unsuccessful on two of the 

challenged causes of action asserted in Koerber’s complaint. (See 

Mann, supra, 139 Cal.App.4th at p. 345.)
43

As the court observed, Koerber never produced copies of 

Project Veritas’s anti-SLAPP and fees motions from her first 

lawsuit that she claims were substantially similar to the motions 

that defendants filed in this lawsuit. Instead, Koerber provided 

only her counsel’s testimony claiming that defense counsel’s 

invoices in this case billed defendants for work that was 

performed as part of Koerber’s first lawsuit. The court was free, 

however, to reject Koerber’s counsel’s testimony, especially when 

that testimony wasn’t corroborated by any other evidence. We 

will not disturb the court’s credibility determinations on appeal. 

(Estate of Young (2008) 160 Cal.App.4th 62, 76 [“We may not 

reweigh the evidence and are bound by the trial court’s credibility

determinations”].) 

Koerber also argues defendants improperly requested 

attorney fees for time defense counsel spent analyzing and 

reviewing Koerber’s complaint because counsel would have 

needed to review that document regardless of whether 

defendants filed their anti-SLAPP motion. Defendants’ billing 

invoices show, however, that defense counsel reviewed Koerber’s 

complaint for the specific purpose of preparing defendants’ antiSLAPP motion. Additionally, Rubin testified that he reviewed all 

the invoice entries and confirmed that defendants were only 

seeking to recover fees for work associated with the anti-SLAPP 

and fees motions. Koerber, on the other hand, points to no 

evidence showing counsel’s review of the complaint was unrelated 

to either motion, nor does she cite any authority prohibiting the 

recovery of fees for time spent reviewing a document that is 

relevant to matters both related and unrelated to an anti-SLAPP 

motion. Consequently, Koerber hasn’t shown the court abused its 

discretion in awarding defendants attorney fees for time defense
44

counsel spent reviewing Koerber’s complaint. (Minkin, supra, 11 

Cal.App.5th at p. 954 [an appellant challenging a fees award 

must affirmatively show the court abused its discretion in 

calculating the award].)

Likewise, Koerber hasn’t shown the court erred in 

awarding defendants attorney fees for 2.8 hours that defense 

counsel spent communicating with various individuals. According 

to Koerber, defense counsel improperly redacted information that 

describes the nature of the work counsel discussed during those 

communications. Koerber, however, hasn’t identified any specific 

billing entry from which defense counsel improperly redacted 

information. As we explained above, it is not our job to comb

through the record to find evidence that substantiates Koerber’s 

claims of error. Koerber, therefore, hasn’t met her burden to show 

the court erred in awarding defendants attorney fees for time 

defense counsel spent communicating with other people. (Minkin, 

supra, 11 Cal.App.5th at p. 954.)
45

DISPOSITION

The orders granting in part and denying in part 

defendants’ anti-SLAPP motion and awarding defendants 

attorney fees and costs are affirmed. The parties shall bear their 

own costs on appeal. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, Acting P. J.

WE CONCUR:

EGERTON, J.

RICHARDSON (ANNE K.), J.*

* Judge of the Los Angeles Superior Court, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.