Tentative Ruling adopted as final ABC SLAPP Motion and Joinder Defendants American Broadcasting Companies, Inc.

, Christopher Cuomo, and Jack Pyle seek an order striking the second, third, and fourth causes of action for libel and intentional infliction of emotional distress from the complaint pursuant to Code of Civil Procedure section 425.16. Request For Judicial Notice: Plaintiff requests judicial notice of Cahills voluntary petition for bankruptcy filed on January 31, 2008, in the U.S. Bankruptcy Court, Central District of California, case No. 8:08-bk-10465-TA. It should be granted. Objections: ABC has submitted 29 objections to plaintiffs evidence. The rulings are as follows: 1. Overrule. Not all of the material in the declaration of Johnson is objectionable. When a portion of a document is admissible and part inadmissible, an objection to the whole is properly overruled. (Walls v. Macys (1964) 226 Cal.App.2d 29, 30; Estate of De Laveaga (1913) 165 Cal. 607, 635-636.) 2. Overrule. Not all of the material in the declaration of Mazingo is objectionable. 3. Overrule. 4. Overrule. 5. Overrule. 6. Overrule. 7. Overrule. 8. Overrule. 9. Overrule. 10. Overrule. 11. Overrule. 12. Overrule. 13. Sustain, hearsay. 14. Overrule. 15. Overrule.

16. Overrule. 17. Overrule. 18. Overrule. 19. Overrule. 20. Overrule. 21. Overrule. The email is authenticated in the declaration of Robert Hill at paragraph 3. 22. Overrule. 23. Overrule. 24. Overrule. 25. Overrule. 26. Overrule. 27. Overrule. 28. Overrule. 29. Overrule.

Motion for Joinder: The motion for joinder is appropriate and should be granted Merits: A. Californias Anti-SLAPP Statute Applies

ABC argues, As demonstrated in *its+ *d+emurrer, this action should be governed by Colorado law, but that in the event the *c+ourt determine*s+ *p+laintiffs claims are governed by the law of California, then *p+laintiffs claims against ABC are subject to Code of Civil Procedure section 425.16. (Motion P&As at p. 1.) This is ABCs only discussion as to whether Californias anti-SLAPP statute should be applied in this case. The argument is problematic for several reasons. Aside from the fact that it is ABC who has invoked and brought this motion pursuant to California law, it is well settled that a separate choice of law analysis must be made with respect to each issue presented, and that California applies its own laws unless a party litigant timely invokes the law of a foreign state and demonstrates its applicability. (Washington Mutual Bank, FA v. Superior Court (2001) 24 Cal.4th 906, 919-920.)

ABCs demurrer only discusses whether Colorado or California law should apply to plaintiffs libel claims. It makes no mention of the anti-SLAPP statute or whether Colorado has a similar procedure. Given ABCs total failure to explain why the anti-SLAPP statute should not apply, the court finds it does. (Washington Mutual Bank, FA v. Superior Court, supra, 24 Cal.4th at p. 919 [California applies its own laws unless a party litigant timely invokes the law of a foreign state and demonstrates its applicability].) B. Legal Standard on Anti-SLAPP Motions Section 425.16 posits ... a two-step process for determining whether an action is a [strategic lawsuit against public participation]. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity.... If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim. (Navellier v. Sletten (2002) 29 Cal.4th at 82, 88.) Only a cause of action that satisfies both prongs of the anti-SLAPP statute i.e., that arises from protected speech or petitioning and lacks even minimal merit is a SLAPP, subject to being stricken under the statute. (Id. at p. 89.) In considering whether the plaintiff has met his burden, the court must consider the pleadings and the evidence submitted by the parties. (Code Civ. Proc., 425.16, subd. (b)(1), (2).) However, the court cannot weigh the evidence. It must simply determine whether the plaintiffs evidence would, if credited, be sufficient to meet the burden of proof. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269; Christian Research Institute v. Alnor (2007) 148 Cal.App.4th 71, 80.) Affidavits or declarations on information and belief are hearsay and inadmissible evidence to show a probability that the plaintiff will prevail. (Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1497.) C. Plaintiffs Claims Are Based on Protected Activity A statement or other conduct is in connection with a public issue or an issue of public interest if the statement or conduct concerns a topic of widespread public interest and contributes in some manner to a public discussion of the topic. (Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th 1337, 1347, citations omitted.) It makes no difference if the statement or conduct involves a private figure. (M.G. v. Time Warner, Inc., supra, 89 Cal.App.4th at pp. 628-629.) All of plaintiffs claims against ABC arise from statements made on a nationally televised broadcast of 20/20. The broadcast discussed the dangers of online dating by presenting several examples of such, including Cahills story. (See Zansberg Decl. at Exh. C.) There is little question that the dangers of online dating constitute a matter of public interest. The California Attorney General has recognized it as a public concern, and to that end entered into a joint statement of online dating safety with three of the nations leading online dating service providers a little less than a year ago on March 19, 2012. (Cal. Atty. Gen., Joint Statement of Key Principles of Online Dating Site Safety (Mar. 19, 2012), available at http://ag.ca.gov/cms_attachments/press/pdfs/n2647_agreement.pdf.) ABCs statements were therefore made in connection with topic of widespread public interest. The statements are protected under section 425.16. (See M.G. v. Time Warner, Inc., supra, 89 Cal.App.4th at pp. 628-629 [finding a broadcasting companys statements about private individuals who had molested children or

had been molested as children on a television broadcast concerning the general topic of child molestation in youth sports to be protected under section 425.16+.) D. California Law Applies to Plaintiffs Libel Claims The second step in the SLAPP analysis is to determine whether plaintiff has shown a probability of prevailing on his claims. To establish a probability of prevailing, plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. (Christian Research Institute v. Alnor (2007) 148 Cal.App.4th 71, 80, citations and quotations omitted.) To make this analysis, the court must first determine whether Colorado or California law applies to plaintiffs libel claims. (See Demurrer P&As at pp. 4-7.) California choice of law rules rest on an analysis of the respective interests of the states involved via a three-step governmental interest test. (Washington Mutual Bank v. Superior Court, supra, 24 Cal.4th at pp. 919-920.) Under the first step of the governmental interest approach, the foreign law proponent must identify the applicable rule of law in [the foreign] ... state and must show it materially differs from the law of California. The fact that two ... states are involved does not in itself indicate there is a conflict of laws problem. [Citation.] Indeed, if the relevant laws of each state are identical, there is no problem and the trial court may find California law applicable to ... *the+ claims. *Citation.+ (Washington Mutual Bank v. Superior Court, supra, 24 Cal.4th at pp. 919-920.) If, however, the trial court finds the laws are materially different, it must proceed to the second step and determine what interest, if any, each state has in having its own law applied to the case. [Citation.] Despite materially different laws, there is still no problem in choosing the applicable rule of law where only one of the states has an interest in having its law applied. *Citation.+ This means the trial court may properly find California law applicable without proceeding to the third step in the analysis if the foreign law proponent fails to identify any actual conflict or to establish the other states interest in having its own law applied. *Citations.+ (Washington Mutual Bank v. Superior Court, supra, 24 Cal.4th at p. 920.) Only if the trial court determines that the laws are materially different and that each state has an interest in having its own law applied, thus reflecting an actual conflict, must the court take the final step and select the law of the state whose interests would be more impaired if its law were not applied. *Citations.+ In making this comparative impairment analysis, the trial court must determine the relative commitment of the respective states to the laws involved and consider ... the function and purpose of those laws. *Citation.+ These rules apply whether the dispute arises out of contract or tort [citations], and a separate conflict of laws inquiry must be made with respect to each issue in the case. *Citations+. (Washington Mutual Bank v. Superior Court, supra, 24 Cal.4th at p. 920.) With respect to the first step, ABC argues that Colorado law on libel materially differs from California law because (1) in Colorado, a private figure plaintiff must demonstrate actual malice with respect to any publication concerning a matter of public concern (Diversified Management, Inc. v. Denver Post, Inc.

(Colo. 1982) 653 P.2d 1103, 1006), while in California, a private figure plaintiff only needs to demonstrate negligence; (2) in Colorado, plaintiff must also plead and prove special damages (Brown v. Barnes (Colo. 1956) 296, P.2d 739, 741); and (3) Colorado imposes a statutory cap on any recovery of non-economic tort damages (Colo. Rev. Stat., 13-21-102.5, subd. (3)(a)) while California does not. (Demurrer P&As at pp. 4-7.) ABC is correct; Colorado law on libel materially differs from California law. In Colorado, a private figure plaintiff claiming libel based on statements of public interest must (1) prove by a preponderance of the evidence that the defendant published or caused to be published a defamatory statement; (2) prove by clear and convincing evidence that the substance of gist of the statement was false at the time it was published; and (3) prove by clear and convincing evidence that the statement was published with actual malice, i.e., that defendant knew the statement was false or made the statement with reckless disregard as to whether it was false. (Colo. Jury Instr., Civil 22:1, and Colorado Supreme Court Committee Notes on Use, No. 9 *When a private person is suing for a libel or slander per se, it is not necessary that the private person prove actual damages, even though the defamation involved a matter of public interest or general concern.+; see Colo. Jury Instr., Civil 22:27, Colorado Supreme Court Committee Source and Authority, citing New York Times Co. v. Sullivan (1964) 376 U.S. 254, 270 *actual malice is a term of art; it means the speaker made the defamatory statement either with knowledge that it was false or with reckless disregard of whether it was true or false].) In California, a private figure plaintiff need only prove by a preponderance of the evidence that the defendant acted negligently in publishing an unprivileged, false, defamatory statement that has a natural tendency to injure or cause special damage. (Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1369; Civ. Code, 45.) Given that the laws are materially different, the court must determine what interest, if any, each state has in having its own law applied to the case. ABC argues that Colorado has a strong interest in having its own law applied because plaintiff was a Colorado resident at the time the broadcast aired. ABC argues that therefore, Colorados state interest in applying its law to a defamation action brought by one of its citizens premised on a broadcast disseminated there could not be more clear. (Demurrer P&As at p. 5.) ABC continues: Colorado developed *its+ standard to ensure that its citizens, like the *p+laintiff, must bear the highest burden in attempting to impose defamation liability on members of news media who publish reports about them. It did so to strike the most press-protective balance between the rights of its citizens to recover for alleged defamations, and the ability of the news media to inform the public, including its citizens, about matters of public concern. (Ibid.) In response, plaintiff explains that he filed this lawsuit in California because he was living in California when he met Cahill; all of the critical events at issue occurred in California; he was born, grew up, and spent most of his life in California; he was a California resident for tax purposes from 2003-2010; he has many relatives and friends who live in California, and has therefore been significantly injured in

California; and jurisdiction as to all parties was only proper in California. (Opp. to Demurrer at pp. 5-6; D. Williams Decl. in support of Opp. to Demurrer at 2.) Since the parties evidence demonstrates that both California and Colorado have an interest in having its own law applied, the court must determine which states interests would be more impaired if its law were not applied. Californias interests would be more impaired. California has a strong interest in applying its law to a defamation claim brought by a plaintiff injured in California against a California resident, based on events that occurred in California when both of the parties were California residents. In contrast, Colorados interest is limited to the fact that plaintiff currently resides there. Its purported interest in ensur*ing+ that its citizens, like the *p+laintiff, * + bear the highest burden in attempting to impose defamation liability on members of news media and preserving its press-protective balance would not be significantly impaired if plaintiffs action in California were governed by California law. This is especially so considering the fact that the ABC defendants are not incorporated in Colorado, do not have their principal place of business there, and do not reside there. Further, the broadcast was aired nationally. Therefore, its balance between protecting its residents from defamation and protecting the ability of the news media to inform the public, including its citizens, about matters of public concern was already limited by the laws of each and every state within which it aired. California law applies. E. Elements to a Cause of Action for Libel The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage. (Wong v. Tai Jing, supra,189 Cal.App.4th at p. 1369; Civ. Code, 45 *Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.+.) A plaintiff in a defamation action must also show that the defendant failed to use reasonable care in determining the truth or falsity of the statement, or if the plaintiff is a public figure, that the defendant acted with actual malice in publishing it. (Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 470; Cabrera v. Alam (2011) 197 Cal.App.4th 1077, 1092 (Cabrera).) F. Two of the Implications Constitute Actionable Defamation It is undisputed that ABC published certain statements concerning plaintiff in the 20/20 broadcast. It is also undisputed as to what those statements were ABC has submitted a copy of the broadcast as an exhibit to the declaration of its counsel, Steven D. Zansberg. (Zansberg Decl. at Exhs. A, C.) As for whether those statements and what they imply constitute actionable defamation, plaintiff has sufficiently demonstrated that at least two of them do. The sine qua non of recovery for defamation ... is the existence of falsehood. (Letter Carriers v. Austin (1974) 418 U.S. 264, 283.) A statement is libelous per se if it directly charges a person with a provable falsehood that has a natural tendency to

injure him or his occupation. A statement can also be libelous per se if it contains a charge by implication from the language employed by the speaker and a listener could understand the defamatory meaning without the necessity of knowing extrinsic explanatory matter. (Wong v. Tai Jing, supra, 189 Cal.App.4th at p. 1369, emphasis in original.) Whether the statements constitute actionable defamation is a question of law for the court. The critical question is not whether a statement is fact or opinion, but whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact. (Wong v. Tai Jing, supra, 189 Cal.App.4th at p. 1370.) To make this determination, California uses a totality of the circumstances test. (Ibid.) Under the totality of the circumstances test, *f+irst, the language of the statement is examined. For words to be defamatory, they must be understood in a defamatory sense.... *+ Next, the context in which the statement was made must be considered. *Citation.+ (Ibid., quoting McGarry v. University of San Diego, supra, 154 Cal.App.4th at p. 113.) From the pertinent portions of 20/20 broadcast, a reasonable fact finder could conclude that it implies two provably false assertions of fact: (1) that plaintiff misled Cahill into thinking that he was divorced during their tenure of their relationship, or at least until his son wrote to Cahill and informed her that his father was still very married, never divorced, never separated; and (2) that plaintiff induced Cahill into a romantic relationship to prey on her financially, which caused her to suffer financial ruin. (See FAC at 17(a)-(c); Zansberg Decl. at Exhs. A-C.) Toward the beginning of the segment, Cuomo introduces Cahills story as follows: It all started on Match.com back in 2005. *Cahill+ went online and met a man named Dave Williams. (Zansberg Decl. at Exhs. B, C.) He continues: Williams told her that he was a family man with four boys, and like her, divorced. (Ibid.) The segment then proceeds to describe the quick progression of plaintiff and Cahills relationship over the next seven months until Cahill received a letter from one of plaintiffs sons that opened her eyes. (Ibid.) The segment then cuts to an interview-like setting with Cuomo and Cahill. Cuomo asks Cahill, *w+hat did he tell you in this letter that blew your mind? to which Cahill responds, *t+hat his father was still very married, never divorced, never separated. (Ibid.) These statements imply that plaintiff misled Cahill into thinking he was divorced for the tenure of their relationship until plaintiffs son informed her otherwise some seven months later. They also imply that plaintiff maintained an extramarital relationship while still very married to his wife. This constitutes actionable defamation; whether plaintiff misled Cahill into believing he was divorced during the tenure of their relationship and whether plaintiff maintained an extramarital relationship while still very married are provable assertions of fact. ABC argues that this implication cannot serve as the basis for plaintiffs claim because it is substantially true, that plaintiff initially lied to Cahill that he was divorced when he was not. This argument fails to defeat plaintiffs showing. The segment does not imply that plaintiff only initially lied about his marital status. It implies that plaintiff kept Cahill in the dark for at least seven months until his son exposed him.

As for the second provable assertion of fact, the segment opens by portraying Cahill as a wealthy Orange County resident that *y+ou could easily mistake for any one of those reality housewives from Orange County. (Zansberg Decl. at Exhs. A-C.) Cahill is shown driving through what appears to be wealthy Orange County neighborhood and dancing in what appears to be a posh nightclub. The segment continues by stating that she lived the online dating dream, actually meeting face to face and moving in with her Romeo, a fateful decision that she says led her on a road to ruin. (Ibid.) Cahill then states that she introduced him to everyone she knew, including some fairly wealthy people, and helped him change his image. (Ibid.) She also states that *s+lowly but surely, he started moving and staying more and more, implying that he moved into her home. Cuomo then narrates, *Cahill+ says she bought her beau a $5,000 watch, a whole new wardrobe, and even a Range Rover, after which Cahill explains she wanted plaintiff to look nice because *he+ *was+ gonna be *her+ husband, *her+ guy. (Ibid.) Cuomo continues, *s+he says seven months into the relationship, she found herself in a new home, blinded by love, oblivious to her mounting debt. (Ibid.) Then several photos of plaintiff and Cahill, and what appears to be Cahills relatively upscale home are shown. (Ibid.) ABC argues that these statements and their implication cannot serve as the basis for plaintiffs claim because they merely reflect the subjective, rhetorically hyperbolic opinion of an ex-lover. (Reply at p. 10.) The critical question is not whether the statements or their implication constitute opinion or fact, but whether a reasonable fact finder could conclude that it implies a provable assertion of fact under the totality of the circumstances. (Wong v. Tai Jing, supra, 189 Cal.App.4th at p. 1370.) The segment leaves the viewer with the impression plaintiff induced Cahill into a romantic relationship to prey on her financially, and that he caused her to incur a mounting debt. Although this is not as clear cut as the implication that plaintiff misled Cahill into believing he was divorced during their relationship, a reasonable fact finder could conclude that it implies a provable assertion of fact, i.e., that plaintiff induced Cahill into a relationship to prey on her financially, used the relationship for his financial gain, and caused Cahill to incur significant debt. G. Plaintiff Has Met His Burden of Demonstrating that the Implications Were False Plaintiff has met his burden of demonstrating that these implications were false. Plaintiff declares that he told Cahill that he was separated but not divorced from his wife within weeks of meeting her. (D. Williams Decl. at 3.) Two of plaintiff and Cahills acquaintances with whom they regularly socialized with during their relationship, Robert Hill and Marnie Hill, declare the four of them discussed plaintiffs marital status several times and that Cahill was well aware of the fact that plaintiff was separated, but not divorced from his wife. (Robert Hill Decl. at 2; Marnie Hill Decl. at 2.) Plaintiff has also submitted evidence which shows that he did not prey on Cahill financially, use her for his financial benefit, cause her to incur significant debt or any debt at all, or cause her suffer financial ruin. (D. Williams Decl. at 5-8; see Johnson Decl. in passim.) Plaintiffs declaration and factual assertions, and the declaration of his CPA, Robert D. Johnson, if credited, would sufficiently demonstrate

the falsity of the implication that he preyed on Cahill financially, used her for his financial gain, and caused her to incur a mounting debt. H. Plaintiff Has Demonstrated Injury Plaintiff demonstrated injury to his reputation. Plaintiff submitted evidence that shows that defendants statements have caused him serious problems at *his+ current job as vice president of sales and marketing for KidsEmbrace. (D. Williams Decl. at 15, Exh. 12.) The emails attached to his declaration support this assertion. For example, one email by an investor of KidsEmbrace states that he was surprised to see plaintiff featured on the subject broadcast, provides a link to the broadcast on ABCs website, notes that the broadcast identifies plaintiff as someone who has been involved with several different women *who+ all claim he *has+ conned them out of hundreds of thousands of dollars, and emphatically states that the company cannot allow this type of individual to continue to represent KidsEmbrace and *its+ investors. (Id. at Exh. 12.) Plaintiff also declares that he has suffered severe emotional distress and migraines as a result of the broadcast. (Id. at 16.) I. Plaintiff is Not a Public Figure

In order to prevail on his claim for libel, plaintiff must also show that defendant failed to use reasonable care in determining the truth or falsity of the statement, or if the plaintiff is a public figure, that the defendant acted with actual malice in publishing it. (Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 470; Cabrera v. Alam (2011) 197 Cal.App.4th 1077, 1092 (Cabrera).) Whether plaintiff is a public figure is a question of law. (Gallagher v. Connell (2004) 123 Cal.App.4th 1260, 1272.) There are two classes of public figures; first, the all purpose public figure, who has achieved such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts, and second, the limited purpose public figure or vortex public figure, who voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure as to his role in that controversy. (McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 113.) The parties do not dispute that plaintiff is not an all purpose public figure. The question is whether plaintiff is a limited purpose public figure. Three elements must be present in order to characterize a plaintiff as a limited purpose public figure. First, there must be a public controversy, which means the issue was debated publicly and had foreseeable and substantial ramifications for nonparticipants. Second, the plaintiff must have undertaken some voluntary act through which he or she sought to influence resolution of the public issue. In this regard it is sufficient that the plaintiff attempts to thrust him or herself into the public eye. And finally, the alleged defamation must be germane to the plaintiffs participation in the controversy. (Ampex Corp. v. Cargle (2005) 128 Cal.App.4th 1569, 1577; Cabrera v. Alam (2011) 197 Cal.App.4th 1077, 1092 (Cabrera).)

ABC argues that plaintiff should be considered a limited purpose public figure because he (1) voluntarily created a knowingly false profile on several dating websites; (2) was already a subject of public controversy on cheater expose websites; and (3) affirmatively took steps to influence his portrayal in news reports about the risks of online dating by CBS Dr. Phil program (Dr. Phil program) and an online radio program hosted by Candace Chambers-Belida (online radio program). (Motion P&As at pp. 22-23.) The argument fails because (1) it is uncertain exactly what public controversy plaintiff could have been seeking to influence by creating an online dating profile; (2) there is no evidence that suggests he was attempting to influence a public controversy by creating an online dating profile; and (3) the affirmative steps he took to influence his portrayal in news reports like the Dr. Phil program and the online radio program were only made in response to producer/reporter inquiries concerning Cahills allegations against him. (See DuBreuil Decl. at Exh. H; D. Williams Decl. at 10-11.) His status as a private figure was not raised to the level of a limited purpose public figure merely because he responded to their inquiries. If this was sufficient to support a public figure characterization, [then] any member of the media - any newspaper, magazine, television or radio network or local station - could confer public figure status simply by publishing sensational defamatory accusations against any private individual. (Khawar v. Globe Intern., Inc. (1998) 19 Cal.4th 254, 266; see Time, Inc. v. Firestone (1976) 424 U.S. 448, 455, fn. 3 *Nor do we think the fact that respondent may have held a few press conferences in an attempt to satisfy inquiring reporters converts her into a public figure.+.) Plaintiff was a private figure. J. Plaintiff Has Demonstrated Negligence

Plaintiff has adequately demonstrated that ABC failed to use reasonable care in determining the truth or falsity of the statements before publishing them. Plaintiff submitted evidence that shows: (1) that the extent of ABCs investigation as to whether the contents of the letter by plaintiffs son, Brady Williams, were true was to leave a single voicemail on Bradys machine asking him to call them back, without leaving any context as to why they were calling (Brady Decl. at 8); (2) ABCs only attempt at contacting plaintiffs wife, Virginia Williams, consisted of a similar voicemail on her machine in January 2011 (Virginia Williams Decl. at 9); (3) ABC only contacted plaintiff twice, once in January 2011 asking him to respond to Cahills allegations that he had conned her out of hundreds of thousands of dollars (D. Williams at 12), and again just days before the segment was scheduled to air, at which time Cuomo essentially offered a take-it-or-leave it opportunity to discuss the matter on the record (Id. at 13); and (4) per the declaration of an expert journalist, ABCs investigative efforts were deficient, breached the journalism code of ethics, and failed to meet the requisite standard of care (Mazingo Decl. in passim). This is sufficient to establish a prima facie case of negligence. In response, ABC has submitted the declaration of James DuBreuil, a producer of 20/20, within which he lists ABCs reasonable and comprehensive investigative efforts concerning Cahills story. The declaration fails to negate plaintiffs showing as a matter of law because (1) it is not signed, and (2) at best, it raises only triable issues of material fact. The court does not weigh the evidence on an anti-SLAPP motion; it

considers the defendants evidence only to determine whether it defeats the plaintiffs prima facie showing as a matter of law. (Soukup v. Law Offices of Herbert Hafif, supra, 39 Cal.4th at p. 269.) The motion should be denied the motion with respect to the second cause of action for libel. K. Plaintiff Agrees to Dismiss the Third Cause of Action for Libel Plaintiff agrees to dismiss the third cause of action. (Opp. at p. 1.) The court will dismiss it. L. Plaintiff has Failed to Demonstrate a Probability of Prevailing on his Fourth Cause of Action Intentional Infliction of Emotional Distress Plaintiff failed to demonstrate a probability of prevailing on his fourth cause of action for IIED. The elements of a cause of action for IIED are: (1) outrageous conduct by the defendant, (2) intent to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering, and (4) actual and proximate causation. (Wong v. Tai Jing, supra, 189 Cal.App.4th at p. 1376.) Although emotional distress may consist of any highly unpleasant mental reaction such as fright, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment or worry *citation], to make out a claim, the plaintiff must prove that emotional distress was severe and not trivial or transient. [Citation.] *+ The California Supreme Court has set a high bar for what can constitute severe distress. *Citation.+ Severe emotional distress means emotional distress of such substantial quality or enduring quality that no reasonable *person+ in civilized society should be expected to endure it. *Citations.+ *Citations.+ Moreover, *i+t is for the court to determine whether on the evidence severe emotional distress can be found; it is for the jury to determine whether, on the evidence, it has in fact existed. (Wong v. Tai Jing, supra, 189 Cal.App.4th at p. 1376, citing Hughes v. Pair (2009) 46 Cal.4th 1035, 1051, and Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1004, emphasis in original.) The only evidence of emotional distress that plaintiff has submitted is his declaration, where he declares: The false defamatory statements made about me by the defendants which are the subject of this lawsuit have caused me, [sic] I have suffered severe emotional distress and migraines as a result of the broadcast and other. *sic+ I suffered extreme embarrassment when the principal of one of my sons school [sic] told me I could not coach the school baseball team because of the [broadcast]. The statements and Ms. Cahills vendetta against me have caused great problems between me and my wife. (D. Williams Decl. 16.) This is insufficient to show emotional distress of such substantial quality or enduring quality that no reasonable person in civilized society should be expected to endure it as a matter of law. (Wong v. Tai Jing, supra, 189 Cal.App.4th at p. 1376-1377.) Plaintiff has therefore failed to demonstrate a probability of prevailing on this claim. The motion should be granted as to fourth cause of action for IIED. CAHILL SLAPP Motion

Defendant Kelley Cahill seeks an order striking the first, third, and fourth causes of action for libel and intentional infliction of emotional distress from the complaint pursuant to Code of Civil Procedure section 425.16. Objections: Cahill submitted 40 objections to plaintiffs evidence. The court overrules all of them. Analysis: A. Plaintiffs Claims against Cahill are Based on Protected Activity Plaintiffs causes of action against Cahill are based on the 20/20 broadcast (FAC at 17), and on eleven posts by Cahill on public cheater expose websites, statements made in a single private email, and a YouTube video clip entitled, The Date Detective. (Id. at 18.) Plaintiff alleges that these posts/statements state or imply that plaintiff routinely cons women into romantic relationships to take financial advantage of them, is a liar and a cheater, ruined his wifes credit, has been fired from almost every job that he has ever had, steals from women, has beaten up his son, and has scammed Cahill in the amount of $1.5 million. (Ibid.) As discussed above on ABCs motion, the statements made in the 20/20 broadcast are protected under Code of Civil Procedure section 425.16. Cahills posts on the admittedly public cheater expose websites and the YouTube video are similarly protected as they constitute statements made in a public forum concerning a matter of public interest, i.e., personal safety and financial fraud in connection with online dating/dating. (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 896-898.) As for the statements made in the private email, they are not. Where a single cause of action alleges both acts protected under the statute and nonprotected acts, the entire cause of action may be stricken under section 425.16 if the principal thrust or gravamen of the claim is protected. *W+hen the allegations referring to arguably unprotected activity are only incidental to a cause of action based essentially on protected activity, collateral references to unprotected activity should not obviate application of the anti-SLAPP statute to the complaint. (Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 520.) All but one of the 20 allegedly defamatory statements constitute protected activity. The gravamen of plaintiffs claims are based on protected activity and that section 425.16 applies. B. Plaintiff has Demonstrated a Probability of Prevailing on the Merits of his First Cause of Action for Libel As discussed above under ABCs motion, plaintiff has demonstrated a probability of prevailing on the merits of his first cause of action for libel. The evidence submitted by Cahill does not defeat plaintiffs showing; it only raises triable issues of material fact. The court denies the motion with respect to the first cause of action for libel.

C. Plaintiff Agrees to Dismiss the Third Cause of Action for Libel Plaintiff has agreed to dismiss the third cause of action. (Opp. at p. 7.) The court orders the cause of action dismissed. D. Plaintiff has Failed to Demonstrate a Probability of Prevailing on the Fourth Cause of Action for Intentional Infliction of Emotional Distress As discussed above under ABCs motion, plaintiff has failed to demonstrate a probability of prevailing on the fourth cause of action for intentional infliction of emotional distress by failing to demonstrate emotional distress. (Wong v. Tai Jing, supra, 189 Cal.App.4th at p. 1376-1377.) The court grants the motion with respect to this cause of action. Demurrer to the First Amended Complaint by ABC Defendants American Broadcasting Companies, Inc., Christopher Cuomo, and Jack Pyle (collectively, ABC) seek an order sustaining their demurrer to the second, third, and fourth causes of action for libel and intentional infliction of emotional distress on the ground that each fails to state sufficient facts. The demurrer is moot with respect to the third and fourth causes of action in light of the ruling above. The only cause of action against ABC remaining is the second cause of action for libel. ABC first argues that the court should apply Colorado law, and not California law, to plaintiffs libel claim. For the reasons discussed above under ABCs anti-SLAPP motion, the recommendation is to find that California law applies. ABC next argues that plaintiff has failed to allege actionable defamation. Not so. As discussed above, plaintiff has sufficiently identified actionable defamation at paragraph 17(a)-(c). ABCs remaining arguments rely on Colorado law. Specifically, ABC argues that plaintiff has failed to allege actual malice or special damages. The argument fails because Colorado law does not apply and because California law does not require a private figure plaintiff to allege actual malice or special damages. The court overrules the demurrer as to the second cause of action for libel.