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Mark Goldowitz, # 96418 California Anti-SLAPP Project 1611 Telegraph Ave., Suite 1200 Oakland, California 94612 Phone: (510) 835-0850 x305 Fax: (510) 465-1985 Special Counsel for Defendant Ilena Rosenthal SUPERIOR COURT OF THE STATE OF CALIFORNIAIN AND FOR THE COUNTY OF ALAMEDA Case No. 833021-5 DEFENDANT ROSENTHAL’S REPLYMEMORANDUM IN SUPPORT OFHER SPECIAL MOTION TOSTRIKE PLAINTIFFS’COMPLAINT AS A SLAPP STEPHEN J. BARRETT, M.D., TERRY POLEVOY, M.D., CHRISTOPHER E. GRELL, Plaintiffs, vs. HULDA CLARK, TIM BOLEN, JAN BOLEN, JURIMED, DR. CLARK RESEARCH ASSOCIATION, DAVID P. AMREIN, ILENA ROSENTHAL, AND DOES 1 TO 100 Defendants Date: May 30, 2001 Time: 2 p.m. Dept: 31 TABLE OF CONTENTS INTRODUCTION I. THE COMPLAINT IS SUBJECT TO THE ANTI-SLAPP LAW A. C.C.P. � 425.16(e)(1) and (2) B. C.C.P. � 425.16(e)(3) and (4) II. PLAINTIFFS HAVE NOT ESTABLISHED A PROBABILITY OF PREVAILING ON THEIR CLAIMS A. Most of the Allegations of the Complaint, Including All of PlaintiffGrell’s Allegations, Do Not Involve Defendant Rosenthal B. Defendant’s Posting of Statements by Others Is Protected by Federal Law C. Defendant’s Statements about Plaintiffs Barrett and Polevoy Are AlsoProtected Because They Do Not Contain Provably False Assertions of Fact D. Defendant’s Statements about Plaintiffs Barrett and Polevoy Are AlsoProtected by the First Amendment, Because Plaintiffs Are Public Figuresand Defendant’s Statements Were Not Made with “Actual Malice.” 1. Plaintiffs Barrett and Polevoy Are Limited Purpose Public Figures 2. Plaintiffs Have Not Presented Clear and Convincing Evidence thatDefendant Made Her Statements with “Actual Malice.” E. Defendant’s Statements about Plaintiffs Barrett and Polevoy Are Also Protected by the Common Interest Privilege F. Plaintiffs Have Not Shown that They Suffered any Damages from Defendant’s Statements III. PLAINTIFFS’ VAGUE REQUEST FOR LEAVE TO CONDUCT DISCOVERYDOES NOT COMPLY WITH C.C.P. � 425.16(g) AND IT MUST BE DENIED CONCLUSION INTRODUCTION Plaintiffs have sued defendant Ilena Rosenthal for her postings about them on the Internet, which were part of the raging public debate surrounding alternative medicine and access to health care information. Defendant’s postings involve petition, petition-related, and speech activity which is covered by the anti-SLAPP law. Plaintiffs have not shown a probability of prevailing on their claims, because defendant’s postings are protected by federal law, do not involve provably false statements of fact, were not made with “actual malice,” are protected by the common interest privilege, and plaintiffs have shown no damage. Indeed, an indication of the lack of merit of plaintiffs’ claims against defendant is that their opposition spends more space attacking the statements, practices, and acts of the other defendants than it does in attempting to present a case against Rosenthal. The following principle applies directly to plaintiffs’ claims against defendant Rosenthal: “Courts must be cautious least we inhibit vigorous public debate about … public issues. If we err, it should be on the side of allowing free-flowing discussion of current events. We must allow plenty of ‘breathing space’ for such commentary.” ( Rudnick v. McMillan (1994) 25 Cal.App.4th 1183, 1193.) The Complaint is a meritless SLAPP, at least as to defendant Rosenthal, and it should be dismissed as to her with prejudice. I. THE COMPLAINT IS SUBJECT TO THE ANTI-SLAPP LAW. Defendant Rosenthal’s moving papers demonstrated that this lawsuit arises from both her petition and petition-related activity, covered by Code of Civil Procedure � 425.16(e)(1) and (2) [FN 1] (Memo 4:15-6:2), and from her speech and petition activity regarding an issue of public interest, covered by � 425.16(e)(3) and (4). (Memo 4:15-5:8, 6:3-7:19.) Plaintiffs’ opposition does not rebut this showing. [FN 1] Statutory section references herein are to this Code, unless otherwise indicated. A. C.C.P. � 425.16(e)(1) and (2). Plaintiffs’ opposition ignores defendant Rosenthal’s own petition and petition-related activity which is covered by subdivisions (e)(1) or (2), as well as the petition and petition-related activity which the Complaint alleges was engaged in by “defendants” (Memo, 6 fn. 3), and incorrectly asserts that defendant Rosenthal’s motion is not brought pursuant to either of those subdivisions. (Opp. 1:16-20.) Plaintiffs’ failure to counter defendant’s discussion of why those two subdivisions apply effectively concedes that point. B. C.C.P. � 425.16(e)(3) and (4). As for subdivisions (e)(3) and (4), plaintiffs urge this Court to “ give a narrow application to the provision of CCP � 425.16 in this case“, asserting that “a broad application is applied to some, but not all CCP 425.16 Section [sic].” (Opp. 1:14-15; emphasis in original.) It is not surprising that plaintiffs cite no valid authority which supports their assertion, for it runs directly counter to the express language in subdivision (a) of the statute that “this section shall be construed broadly.” (See also Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1119 [courts, "whenever possible, should interpret the First Amendment and section 425.16 in a manner 'favorable to the exercise of freedom of speech, not its curtailment.'"].) Zhao v. Wong (1996) 48 Cal.App.4th 1114, relied on heavily by plaintiffs (Opp. 1:9-15, 5:1-6:2), was not “disapproved on other grounds,” as plaintiffs assert. (Opp. 1:9-10.) Rather, the Legislature’s 1997 amendment to � 425.16, mandating that it be “construed broadly,” was specifically intended to overrule Zhao because of its narrow construction of the statute, which plaintiffs urge here. ( Briggs, at pp. 1120-1121.) [FN 2] As the Supreme Court noted, “ Zhao is incorrect in its assertion that the only activities qualifying for statutory protection are those which meet the lofty standard of pertaining to the heart of self government.” ( Briggs, at p. 1116, quoting with approval Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1046-1047.) Plaintiffs rely directly on this repudiated standard. (Opp. 5:2-9.) Plaintiffs assert that defendant’s statements had nothing to do with her work on breast implants, were unrelated to any public issue covered by � 425.16 (relying heavily on the discredited narrow construction of the anti-SLAPP statute in Zhao v. Wong), and were not made in a public forum. (Opp. 1:26-2:6, 4:20-6:2, 11:26-12:16.) However, defendant Rosenthal’s criticisms of defendants Barrett and Polevoy were motivated by what she considered to be their efforts to ridicule and suppress discussion of alternatives to conventional medicine, which she considers to be necessary for women to make informed decisions about breast implants. (Rosenthal Decl., �� 11, 13 15-22, 39-43, 48, 50-52, 57; Rosenthal Supp.Decl., �� 3-5.) In any case, regardless of defendant’s motivations, her statements did involve criticisms of plaintiffs’ stance toward alternative medicine and its practitioners, certainly an issue of public interest. Defendant Rosenthal’s statements and posts were made to “newsgroups” on the Internet, which, as previously discussed, and contrary to plaintiffs’ unsupported assertion (Opp. 12:1-5) is a public forum. (Memo 7:9-15.) In addition, as previously noted, defendant’s statements are also “any other conduct in furtherance” of her “constitutional right of free speech in connection with a public issue or an issue of public interest,” and thus are covered by � 425.16(e)(4). (Memo 7:16-19.) II. PLAINTIFFS HAVE NOT ESTABLISHED A PROBABILITY OF PREVAILING ON THEIR CLAIMS. As discussed in defendant’s moving papers, once she has made a prima facie showing that the Complaint arises from her petition or speech activity covered by the anti-SLAPP law, as she has done, the burden shifts to the plaintiffs to establish a probability of prevailing, which must be done by competent and admissible evidence. (Memo 7:22-27.) As discussed below, plaintiffs have not done this. Therefore, defendant’s motion should be granted. A. Most of the Allegations of the Complaint, Including All of Plaintiff Grell’s Allegations, Do Not Involve Defendant Rosenthal. As previously discussed, most of the allegations in the Complaint, including all of plaintiff Grell’s allegations, do not involve defendant Rosenthal, but rather other defendants. (Memo 8:3-18.) Plaintiffs’ opposition dramatically illustrates this point, with much of it written as if they were opposing a special motion to strike brought by all “defendants,” not just Rosenthal. (See Opp. 1:8,21, 2:3,7-9, 2 fn. 1, 4:10,15,20,22, 6:13-7:16, 9:7,11,24-26, 10:15-16, 10 fn. 3, 11:6,12,23-24, 12:1-20, 13:8-16,24-26, 14:1-2, 15:5-14.) Indeed, plaintiffs appear to believe that they can hold defendant Rosenthal liable vicariously, through their character assassination of the other defendants. (See Opp. 1:27-2:2, 2 fn. 1, 2:20-3:24, 6:13-7:7, 10 fn.3.) In so doing, they assert, without any support or basis, that “Ilena Rosenthal is one of Tim Bolen’s soldiers,” — which is a total fabrication. (Opp. 3:17; see Rosenthal Supp.Decl., � 17.) Plaintiff Grell has produced no evidence that defendant Rosenthal made any defamatory statements about him. The only specific statement or posting by defendant Rosenthal which is identified in plaintiffs’ opposition is a passage from Tim Bolen’s opinion piece dealing with Polevoy and Christine McPhee, which Rosenthal reposted. (Opp. 14:10-24.) However, as discussed in the next section, federal law protects such posting on the Internet of statements by third parties. The other statements discussed in the declarations of Barrett [FN 3] and Polevoy were already discussed in defendant’s moving papers (see Rosenthal Decl., �� 33-48), and/or are discussed below and/or in defendant’s supplemental declaration. (See Rosenthal Supp.Decl., �� 9, 12, 15-16.) [FN 3] Many of the alleged statements by defendant Rosenthal about which Barrett complains in his declaration were allegedly made after this Complaint was filed (November 3, 2000). (See Barrett Decl., �� 21, 30-31.) These alleged statements are legally irrelevant to defendant’s special motion to strike this Complaint. ( Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 655 ["As in a motion for summary judgment, the pleadings frame the issues to be decided" on a special motion to strike].) B. Defendant’s Posting of Statements by Others Is Protected by Federal Law. As defendant discussed in her moving papers, 47 U.S.C. 230, part of the federal Communications Decency Act, protects the posting of statements by third persons on Internet newsgroups. This applies to defendant Rosenthal�s posting of Tim Bolen�s opinion piece shortly after August 14, 2000, and her reposting of a letter from Patricia Nail to the Canadian Minister of Health on or about August 18, 2000. (Memo 8:18-10:5.) Plaintiffs’ opposition completely ignores this defense, and thereby concedes it. C. Defendant’s Statements about Plaintiffs Barrett and Polevoy Are Also Protected Because They Do Not Contain Provably False Assertions of Fact. In her moving papers, defendant Rosenthal demonstrated that her posts labelling Barrett and Polevoy as “quacks” and stating that Barrett was “arrogant” and a “bully,” and that he tried to “extort” her when he threatened to sue her unless she paid him off, were non-actionable opinion. (Memo 10:6-11:21.) Plaintiffs’ opposition ignores that discussion, and does not attempt to argue that any of those statements are actionable. Instead, plaintiffs’ opposition cites a passage from defendant Bolen’s opinion piece as containing provably false statements of fact. (Opp. 14:9-24.) However, as discussed above, federal law prevents plaintiffs from holding defendant Rosenthal liable for posting this statement by another on the Internet. Plaintiffs’ opposition also cites several old defamation cases (most of which are more than 45 years old). However, the boundaries of permissible public discourse have evolved significantly in the last half century. Although it may have been actionable to call someone a “hypocrite” in 1916, or an “old witch” in 1955 (Opp. 8:24-9:5), today calling someone a “thief” and a “liar” in a public debate has been held to be constitutionally- protected rhetorical hyperbole. ( Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 280.) Defendant Rosenthal’s opinions and rhetoric are entitled to no less protection. The conclusion that defendant’s statements are protected opinion or rhetoric is also supported by the forum and context in which her statements were made, in “the general cacophony of an Internet” newsgroup, “part of an on-going free-wheeling and highly animated exchange” about health issues, where “the postings are full of hyperbole, invective, short-hand phrases and language not generally found in fact-based documents.” ( Global Telemedia International v. Doe 1 aka BUSTEDAGAIN40 (C.D.Cal. 2001) 132 F.Supp.2d 1261, 1267, 1269-1270 [holding critical comments about plaintiff in Internet chat-room, including that it "screwed" investors out of their money and lied to them, to be non-actionable opinion and rhetoric]; see also Rosenthal Decl., � 27.) “[W]here potentially defamatory statements are published in a public debate, … or in another setting in which the audience may anticipate efforts by the parties to persuade others to their positions by use of epithets, fiery rhetoric or hyperbole, language which generally might be considered as statements of fact may well assume the character of statements of opinion.” ( Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596, 601.) As with letters to the editor, Internet postings “are typically laden with literary license for the purpose of expressing one’s opinion.” ( Rudnick v. McMillan, at p. 1193.) D. Defendant’s Statements about Plaintiffs Barrett and Polevoy Are Also Protected by the First Amendment, Because Plaintiffs Are Public Figures and Defendant’s Statements Were Not Made with “Actual Malice.” In her moving papers, defendant Rosenthal demonstrated that: (1) plaintiffs Barrett and Polevoy, who have actively thrust themselves into the forefront of the controversy over alternative vs. conventional health practices which has given rise to this lawsuit, are limited purpose public figures (Memo 11:24-13:17); and (2) plaintiffs have not shown by clear and convincing evidence that defendant�s statements were made with “actual malice.” (Memo 13:18-14:8.) Plaintiffs’ opposition has not rebutted either point. 1. Plaintiffs Barrett and Polevoy Are Limited Purpose Public Figures. In most of their discussion of this issue, plaintiffs do not deny that they are limited purpose public figures for purposes of this lawsuit; they merely assert that such status is irrelevant to defendant’s motion because the anti-SLAPP statute does not apply. (Opp. 7:24-8:4, 13:7-18.) However, as discussed above in Part I, the anti-SLAPP statute does apply to this Complaint, so this assertion is without merit. Indeed, Barrett’s own declaration documents his active involvement in the public debate about alternative medicine. (Barrett Decl., � 1.) At one point, however, plaintiffs appear to claim they are not public figures as to defendant Rosenthal because they are not involved in the debate about breast implants. (Opp. 14:1-8.) However, even if this were true — and it is not true as to Barrett (Rosenthal Supp.Decl., � 4) –, plaintiffs Barrett and Polevoy have, as documented in defendant’s moving papers and in Barrett’s own declaration, “thrust themselves into the forefront” ( Reader’s Digest Ass’n v. Superior Court (1984) 37 Cal.3d 244, 255) of the controversy over alternative medicine and its practitioners, including Polevoy’s role in the cancellation of a Canadian alternative medical radio show. It is precisely this activity which prompted defendant Rosenthal’s criticisms of said plaintiffs, which in turn gave rise to this lawsuit. (Rosenthal Decl., �� 15-22, 25-26, 39-43, 48, 52; Rosenthal Supp.Decl., �� 3-6.) The fact that defendant Rosenthal’s motivation for involvement in these discussions was her concern about breast implant issues does not make plaintiffs any less public figures for purposes of this lawsuit. Plaintiffs’ argument to the contrary makes no sense, because it would mean that plaintiffs would be public figures as to defendant Bolen, but not as to defendant Rosenthal, for the posting of precisely the same Bolen opinion piece. 2. Plaintiffs Have Not Presented Clear and Convincing Evidence that Defendant Made Her Statements with “Actual Malice.” Plaintiffs must establish “actual malice” by clear and convincing evidence, “such as to command the unhesitating assent of every reasonable mind.” ( Beilenson v. Superior Court (1996) 44 Cal.App.4th 944, 950.) The only evidence which plaintiffs point to as supporting their claim that defendant Rosenthal made her statements with “actual malice” is an “e-mail letter by Defendant saying she ‘despises’ Defendants [sic].” (Opp. 13:20-23.) However, this is not clear and convincing evidence of “actual malice,” for two reasons. First, this evidence is not legally relevant to the existence of “actual malice” for First Amendment purposes. To show “actual malice,” a plaintiff must show “that the defendant in fact entertained serious doubts as to the truth of his publication. … This test directs attention to the defendant’s attitude toward the truth or falsity of the material published . . . [not] the defendant’s attitude toward the plaintiff.” ( Reader’s Digest, at pp. 256-257; internal quotation marks and citations omitted.) Evidence of defendant’s “ill will [toward plaintiff] does not constitute proof of knowledge of falsity.” ( Gomes v. Fried (1982) 136 Cal.App.3d 924, 934.) Second, the statement which plaintiffs cite is also factually irrelevant. It was made after and because she had been “served” with plaintiffs’ Complaint, which happened just nine days after she got married, and which caused a major disruption of her life and work. (Rosenthal Supp.Decl., �� 8-9, 17.) As previously discussed, defendant believed and believes that there was a reasonable basis for her statements. (Rosenthal Decl., �� 34-48; Rosenthal Supp.Decl., �� 3-4, 6, 12, 15-16.) E. Defendant’s Statements about Plaintiffs Barrett and Polevoy Are Also Protected by the Common Interest Privilege. As discussed in defendant’s moving papers, her statements about plaintiffs Barrett and Polevoy are also protected by the common interest privilege in Civil Code � 47(c), because they were made to newsgroup participants who share a common interest in matters related to alternative health, and were made without (common-law) malice. (Memo 14:9- 25.) Plaintiffs argue that � 47(c) does not apply because defendant’s statements were “unsolicited” (Opp. 12:21-22), but they cite no authority supporting this argument, which is inconsistent with the purpose of this privilege. They also claim that defendant’s postings were “not on the topic of alternative health care.” (Opp. 12:23-24.) However, they clearly were. (Rosenthal Decl., �� 21-23, 26-27, 34-35, 37, 39-43, 47-48.) Plaintiffs also argue that defendant�s statements were made with malice. (Opp. 9:16-11:5, 12:17-13:7.) In support of this assertion, plaintiffs point to a statement by defendant Rosenthal that she “despises” plaintiffs. (Opp. 10:17-20 , 12:26-28, 13:20-23; see also Barrett Decl., � 31.) However, as noted above on page 7, defendant said this after and because she had been sued by plaintiffs. Thus, it is irrelevant to her state of mind when she made the statements alleged in the complaint. F. Plaintiffs Have Not Shown that They Suffered any Damages from Defendant’s Statements. Plaintiffs have submitted no evidence that they have suffered any actual damage as a result of defendant�s statements, another indication that this is a meritless SLAPP which should be dismissed. ( Averill v. Superior Court (1996) 42 Cal.App.4th 1170, 1176.) Even for a claim of libel per se, “plaintiffs must show damages as a result of the postings.” ( Global Telemedia, at p. 1270.) III. PLAINTIFFS’ VAGUE REQUEST FOR LEAVE TO CONDUCT DISCOVERY DOES NOT COMPLY WITH C.C.P. � 425.16(g) AND IT MUST BE DENIED. Plaintiffs’ opposition, “as an aside,” requests leave “to conduct discovery to provide additional evidence should the Court rule that Plaintiffs’ reply [sic] is insufficient.” (Opp. 7:18-21; see also 10:1-2, 13:23-28, 15:11-14.) Thus, plaintiffs acknowledge the weakness of their case. In addition, plaintiffs’ request for discovery does not comply with � 425.16(g), which governs the discovery stay and relief therefrom when a special motion to strike is pending. Subdivision (g) provides that relief from the discovery stay may be granted only “on noticed motion and for good cause shown … that specified discovery be conducted.” Here, plaintiffs have not made this request by noticed motion, and they have not shown good cause to conduct specified discovery. Therefore, this request to conduct discovery must be denied. ( Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 357 [request for discovery in opposition papers denied because not made by noticed motion]; Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1499 [request for discovery denied when not made by noticed motion and no good cause shown].) CONCLUSION. For the reasons set forth above and in defendant’s moving papers, this lawsuit is a meritless SLAPP, as least as to defendant Rosenthal. Her special motion to strike should be granted, and the Complaint should be dismissed with prejudice, as to her. Dated: May 25, 2001 Respectfully submitted, Mark Goldowitz Attorney for defendant Rosenthal

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