DIAMOND RANCH ACADEMY VS. ------- ------- DEFENDANT'S MOTION TO STRIKE

Anthony C. Kaye

Zaven A. Sargsian

Ballard Spahr LLP

201 South Main Street, Suite 800

Salt Lake City, Utah 84111-2221

Telephone: ------------; Facsimile: -----------

kaye@

sargsianz@

Edward Chang (admitted pro hac vice)

Ballard Spahr LLP

655 West Broadway, Suite 1600

San Diego, California 92101-8494

Telephone: ------; Facsimile: ------------

change@

Ira A. Burnim (admitted pro hac vice)

Jennifer Mathis (admitted pro hac vice)

Julia Graff (admitted pro hac vice)

Andrew Christy (admitted pro hac vice)

Bazelon Center For Mental Health Law

1101 15th St. NW, #1212

Washington, DC 20005

Telephone: --------; Facsimile: --------------

irab@

jenniferm@

juliag@

andrewc@

Attorneys for Defendant, ------- -----

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF UTAH, CENTRAL DIVISION

DIAMOND RANCH ACADEMY, INC., Plaintiff, v. ------- -----, Defendant.

DEFENDANT ------- -----’S SPECIAL MOTION TO STRIKE Case No.:  2:14-CV-00751-TC Judge Tena Campbell

Pursuant to California Code of Civil Procedure section 425.16, Defendant ------- -----[1] (“Ms. -----” or “Defendant”) respectfully moves this Court for an Order striking the First, Second, Third, Fourth, and Fifth causes of action from Plaintiff Diamond Ranch Academy, Inc.’s (“DRA” or “Plaintiff”) Amended Complaint.  Ms. ----- moves for this relief on the grounds that these causes of action against Ms. ----- arise from statements she made in exercise of her constitutionally protected free speech rights and DRA cannot demonstrate any probability of prevailing on the merits of these claims.

Ms. ----- further requests that pursuant to California Code of Civil Procedure section 425.16(c), the Court order DRA to pay the attorneys’ fees and costs Ms. ----- has incurred in defending against these claims.

______________________________________________________________________________

MEMORANDUM IN SUPPORT OF DEFENDANT ------- -----’S MOTION TO STRIKE

______________________________________________________________________________

Ms. ----- submits this memorandum in support of her Motion pursuant to DUCivR 7-1(a).  Ms. ----- also submits her declaration and the declarations of ------- ------- , ------- , ------- .,[2] ------- and in support of her Motion.  Ms. ----- requests that the Court strike all causes of action asserted against Ms. ----- in the Amended Complaint filed on January 7, 2015 by DRA, pursuant to California’s anti-SLAPP[3] statute, Cal. Code Civ. Proc. § 425.16.

I.                   INTRODUCTION

------- ----- is a youth advocate who launched a website to provide a forum for former students, or survivors, of Diamond Ranch Academy, a residential treatment program, to share their experiences.  After Ms. ----- exercised her constitutionally protected right to freedom of speech, DRA filed its lawsuit to silence her.  As a result of the lawsuit, Ms. ----- is fearful of exercising her freedom of speech.  This Court should strike DRA’s claims.

As an adolescent, Ms. ----- attended a residential treatment program in Mexico.  After she was released, she became an advocate for children’s rights.  Since 2004, she has shared her story and experiences with various advocacy organizations, the media, and individuals who attended similar institutions or contemplated sending their children to similar institutions.  She has also contacted various law enforcement departments and state agencies to report allegations of abuse at various residential treatment programs.

In early 2012, DRA appeared on a nationally televised show—Dr. Drew’s Lifechangers.  Shortly after the episode aired, an advocacy organization informed Ms. ----- about DRA and its appearance on the show.  This was the first time Ms. ----- heard of DRA.  To learn more about DRA, Ms. ----- joined various Facebook groups, reviewed websites discussing DRA, and interviewed individuals who attended DRA.  After discovering the similarities between DRA and the places Ms. ----- previously attended, she decided to launch a website dedicated to the survivors of DRA that allowed them to submit their experiences at DRA—many of which concerned the improper treatment or abuse of children—and to submit a complaint to the state government agency regulating DRA.

Ms. -----’s actions occurred in California.  She is a California citizen, exercising her freedom of speech from California.  This Court should apply California’s anti-SLAPP statute and strike DRA’s claims.  There are two parts to California’s anti-SLAPP statute.  First, Ms. ----- will demonstrate that she exercised her right of free speech by being an advocate for children’s rights for numerous years, providing interviews to various media outlets, joining advocacy organizations, and launching a website to provide a forum for individuals to submit their experiences at DRA.  Second, DRA will not be able to meet its burden to demonstrate that it can prevail on the merits.  This Court should strike DRA’s claims with prejudice because amendment would be futile and award Ms. ----- her attorneys’ fees and costs.

II.                STATEMENT OF FACTS

A.                After Attending a Residential Treatment Program, Ms. ----- Became an Advocate.

In 2001, when Ms. ----- was fifteen years old, she was sent to a residential treatment center for youth called Casa by the Sea in Mexico, where she was malnourished, physically restrained, and forced to sit in painful positions, among other things.  (See Declaration of------- -------  in Supp. of Def.'s Mot. To Dismiss (“------- Decl.”) ¶¶ 6-9, files concurrently herewith.)  After six months at Casa by the Sea, Ms. ----- was sent to a boot camp called High Impact, which was also in Mexico.  (Id. ¶ 10.)  At High Impact, she was forced to walk countless laps around a track and perform physical labor.  (Id. ¶ 11.)  She was also physically restrained, causing a permanent spinal injury.  (See id.) 

Ms. ----- was released from High Impact and Casa by the Sea in 2003.  (Id. ¶ 13.)  After her release, she wrote about her experiences at those institutions and shared her experiences with others.  (Id. ¶ 14.)  Law enforcement officials contacted Ms. ----- about her experience at Casa by the Sea, which they raided and shut down shortly thereafter.  (Id. ¶ 16.)  As a result, Ms. ----- determined to dedicate herself to advocating on behalf of others who attended similar institutions.  (Id.)

In 2005, Ms. ----- learned about World Wide Association of Specialty Programs (“WWASP”), which ran programs like Casa by the Sea and High Impact.  (Id. ¶ 17.)  Later, Ms. ----- recounted her experience at Casa by the Sea and High Impact to an advocacy organization which submitted her story to the United States Government Accountability Office (“GAO”).  At the time, the GAO was investigating widespread abuse at residential treatment programs throughout the United States.  (Id. ¶ 19.)  In 2010, Ms. ----- created a website for former students of WWASP institutions to share their experiences, to collect information, and to provide information about WWASP institutions to parents and government agencies.  (Id. ¶ 21.)  Ms. ----- and other advocates also sought legislation to protect children at residential treatment programs.  (Id.)

B.                 DRA’s Appearance on National Television Lead to Ms. -----’s Website DRASurvivors.com.

Ms. ----- learned of DRA in early 2012 when an advocacy organization contacted her about DRA and its appearance on Dr. Drew’s Lifechangers television show.  (Id. ¶ 26.)  Ms. ----- began researching DRA.  She joined Facebook groups and read postings from former DRA students.  (Id. ¶ 27.)  Ms. ----- also interviewed former DRA students and upon hearing their experiences at DRA, immediately recognized the similarities between her experience at Casa by the Sea and High Impact and their experiences at DRA (i.e., use of physical restraint and similar rules, policies and structure of the programs).  (Id. ¶ 28.)

Disturbed by the survivors’ accounts and the similarities they bore to her own experiences, Ms. ----- decided to launch a website to (1) allow survivors to share their experiences at DRA, (2) provide information to the public and (3) gather information about DRA to submit a complaint to the Utah Department of Human Services (“Utah DHS”), which regulates DRA, and local law enforcement.  (Id. ¶¶ 29-30.)  On the website, DRASurvivors.com, Ms. ----- created a survey that allowed individuals to submit their experience or “testimony” under penalty of perjury.  (Id. ¶ 31.)  Ms. ----- included the following notice before individuals can submit their information:

By submitting this content you agree to allow DRASurvivors.com to use this information for publishing, investigative purposes or for use in rescue efforts. By submitting these statements you assert that the allegations expressed are true and reported from first hand experience. You acknowledge that it is your responsibility to fully investigate any unsubstantiated claims and grant waiver to further investigation or validation of claims by DRASurvivors.com. You have the right to remain anonymous, and your contact information will never be used or posted without your expressed permission.

(See DRA Survivors website at http://drasurvivors.com/survivor-testimony/ (emphasis added).)  Ms. ----- also included the following disclaimer on each page:

DRASurvivors.com is a survivor community that welcomes parents, survivors and advocates to share their personal experiences with Diamond Ranch Academy. DRASurvivors.com references survivor testimony, personal accounts and various reports, DRASurvivors does not actively investigate these reports. Rather, we only provide a venue for these voices to be heard. Opinions on this page may not directly reflect the opinion of the admin, owner or host, however the right to free speech and unbiased review is observed for DRASurvivors.com's contributors.

(See generally DRASurvivors.com (emphasis added).)

One of Ms. -----’s goals was to obtain information to submit to the local government authority regulating DRA.  (Papciak Decl. ¶¶ 21, 37.)  Ms. ----- required that testimonies be submitted under penalty of perjury.  (Id. ¶ 31.)  Since Ms. ----- launched DRASurvivors.com, she has received approximately sixty statements from former DRA attendees.  (Id. ¶ 32.)  These reports are internally consistent and are consistent stories with what Ms. ----- knew to be true of the WWASP programs she herself attended, as well as those she researched as an advocate.  Some of these reports were posted on DRASurvivors.com, as was a summary of these reports.  (Id. ¶¶ 32-34.)  After Ms. ----- collected statements from DRA survivors, she filed a complaint with the Utah Department of Human Services—the state agency that regulates DRA.  (Id. ¶ 37.)

C.                DRA Is A Public Figure Because It Thrusted Itself Into The Controversy Over How To Treat Teens at Residential Treatment Programs.

DRA appeared on Dr. Drew’s Lifechangers television show, which was broadcasted nationally on The CW Television Network on January 30, 2012.  (See YouTube.com, The Opportunity to Save His Future, https://www.youtube.com/watch?v=9v0YojzS9KU (last visited February 28, 2015).)[4]  DRA representatives appeared on the television show to offer DRA’s services and promote the program as a world class therapeutic treatment program for children.  (See Diamond Ranch Academy website at http://www.diamondranchacademy.com (last visited March 9, 2015), a screenshot of the webpage is attached hereto as Exhibit 2.)  On information and belief, this episode was shot and produced in California, requiring DRA to travel to California to appear on the television show.

Furthermore, in response to Ms. -----’s website, DRASurvivors.com, DRA created a competing website called TheRealDRASurvivors.com on February 22, 2013.  (See Therealdrasurvivors.com Whois Lookup at http://who.is/whois/therealdrasurvivors.com, a copy of which is attached hereto as Exhibit 3; Screenshot of The Truth About Diamond Ranch Academy webpage captured from Wayback Machine on December 12, 2013 at https://web.archive.org/web/20131212033306/http://www.therealdrasurvivors.com/, attached hereto as Exhibit 4.)  DRA also published YouTube videos on November 15, 2013 responding to negative comments about DRA.  (See YouTube.com, Students respond to negative comments about Diamond Ranch Academy, https://www.youtube.com/watch?v=CLjNkaC0VIo (last visited March 9, 2015); YouTube.com, Students respond to negative comments about Diamond Ranch Academy Part 2, https://www.youtube.com/watch?v=XCXfZ-o5b18 (last visited March 9, 2015).)

Finally, DRA regularly provides interviews to various media outlets.  (See E! Entertainment Television, LLC, Paris Jackson’s Potential Treatment Facility: An Inside Look at Diamond Ranch, http://www.eonline.com/news/437555/paris-jackson-s-potential-treatment-facility-an-inside-look-at-diamond-ranch (last visited March 1, 2015) (“Sean Elsmore, the admissions counselor at Diamond Ranch . . . tells E! News that ‘based off what we have read about [Paris Jackson] from online reports, she would be a good fit for our facility.’”), a copy of which is attached hereto as Exhibit 5; St. George News, Diamond Ranch Academy teen treatment facility opens new Hurricane campus, http://www.stgeorgeutah.com/news/archive/2012/11/28/morgan-diamond-ranch-academy-teen-treatment-facility-opens-new-hurricane-campus/#.VPPAuhYsNhE (last visited March 1, 2015) (“‘Character building is a major component of Diamond Ranch Academy,’ [Admissions Director Dan Borchardt] said.  ‘Students learn respect for themselves and other throughout all components of the school.’”), a copy of which is attached hereto as Exhibit 6.)

D.                The Allegedly Defamatory Statements.

The following is an overview of the statements that DRA allege are defamatory in paragraph 11 of its Amended Complaint:

a.       That DRA is not a legitimate treatment facility and that its methods are unethical, illegal, abusive and fatal;

b.      That DRA physically, emotionally and psychologically abuses its students;

c.       That DRA owners and staff “completely disregard the rights, individual needs and welfare” of its students;

d.      That DRA unlawfully incarcerates and dehumanizes children;

e.       That DRA engages in deceptive and dishonest marketing techniques;

f.       That DRA employs a violent and painful form of torture as punishment;

g.      That DRA employs an unqualified, improperly trained staff;

h.      That DRA operates a “private prison, where due process of the law and even the most basic of human rights are violated”;

i.        That when a parent sends a child to DRA, the child will be abused, and may “never come back at all”;

j.        That DRA engages in improper strip searches, “cruel and unusual punishment”, dehumanization, humiliation, and the starvation of its student;

k.      That DRA’s students are denied adequate medical care and food;

l.        That DRA employs “seclusion, forced labor, physical violence, fear based control and brainwashing methods that violate all basic human rights and could certainly be considered child abuse, if not actual torture”;

m.    That DRA’s treatment is “at best ineffective and at worst abusive, neglectful, and even fatal”

n.      That DRA does not provide “real therapy”, does not follow clinical standards, “physically and psychologically” abuses children, and “scams parents out of millions of dollars”;

o.      That members of DRA’s medical staff are not licensed medical professionals;

p.      That DRA has a “long history of abuse, dangerous policies and a wrongful death”

q.      That DRA’s therapy techniques are not “clinically approved”, “but quite simply a form of corporal punishment”; and

r.        That DRA is not a legitimate treatment facility and that its methods are unethical, illegal, abusive and fatal.

(Am Compl. ¶ 11.)

Accompanying this anti-SLAPP motion are four declarations made by individuals who previously attended DRA.  ------- ------- , ------- , ------- and ------- . (collectively the “Declarants”) submit their declarations to provide details of their experiences at DRA, confirm the truthfulness of statements found on DRASurvivors.com, and express their opinions of the importance of DRASurvivors.com and Ms. -----’s advocacy efforts.

There are many similarities among the Declarants.  Most importantly, all the Declarants were minors, from a state other than Utah, sent by their parents to DRA to get “treatment.”  The Declarants explain the structure of DRA’s program: students must advance through different levels before they graduate—i.e., “Homeless,” “Student,” “Supervisor,” “Manager,” “Director,” “Graduate,” and “Date.”  The Declarants then explain, in detail, the humiliation and mistreatment they experienced or witnessed at DRA.  The declarations detail bullying by staff, censorship of students’ speech, close monitoring, arbitrary and cruel punishment, inadequate care and nutrition, and abuse.  Finally, the declarations show how the Declarants, after leaving DRA, connected with Ms. ----- to educate the public about the events that occurred to them and others at DRA.  These declarations confirm the truthfulness of the statements that DRA alleges are defamatory, demonstrate the public interest in DRASurvivors.com, and support striking DRA’s claims against Ms. -----.

III.             ARGUMENT

A.                California’s Anti-SLAPP Statute Applies.

Although Ms. ----- does not dispute that Utah law applies to DRA’s claims for libel, libel per se, slander, slander per se, and intentional interference with prospective economic advantage, this Court should apply California’s anti-SLAPP statute because Ms. ----- is a California resident who launched DRASurvivors.com from California and all her actions—including the communication of statements privileged by the California’s anti-SLAPP statute—occurred in California.

“[F]ederal courts sitting in diversity ‘apply state substantive law and federal procedural law.’”  Shady Grove Orthopedic Associates, P.A. v. Allstate Ins. Co., 559 U.S. 393, 417 (2010) (citation omitted).  A state’s substantive law includes the forum state’s choice-of-law rules.  See Boyd Rosene & Assocs., Inc. v. Kansas Mun. Gas Agency, 123 F.3d 1351, 1352 (10th Cir. 1997).  To determine which state’s law controls, a federal court sitting in diversity applies the forum state’s choice of law.  Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d 1523, 1532 (10th Cir. 1996); Mauldin v. Worldcom, Inc., 263 F.3d 1205, 1211 (10th Cir. 2001) (“A federal trial court sitting in diversity jurisdiction must apply the choice of law rules of the forum state . . . .” (citations omitted)); Kipling v. State Farm Mut., 774 F.3d 1306, 1310 (10th Cir. 2014) (“In a diversity action we apply the conflict-of-laws rules of the forum state.” (citation omitted)).

Utah applies the most significant relationship test.  See Am. Nat’l Fire Ins. Co. v. Farmers Ins. Exch., 927 P.2d 186, 190 (Utah 1996) (“[T]he most significant relationship test as explained in Restatement of Conflict section 188 is the appropriate rule for Utah courts to apply to a conflict of laws question in a contract dispute.”); Waddoups v. Amalgamated Sugar Co., 2002 UT 69, ¶ 18, 54 P.3d 1054 (applying most significant relationship test to tort claims).  Restatement (Second) Conflicts of Laws “lists several factors to take into account in determining which substantive law to apply: (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered.”  Waddoups, 2002 UT 69, ¶ 18 (citation and internal quotation marks omitted).  Ms. -----’s statements are privileged by the California anti-SLAPP statute; therefore, a Utah state court would likely use the same “significant relationship” test to determine which state’s law applies to determine the privilege.  See Hercules, Inc. v. Martin Marietta Corp., 143 F.R.D. 266, 268-269 (D. Utah 1992) (predicting that Utah would use the significant relationship test for assessing privilege choice-of-law issues because Utah has applied the significant contacts analysis of the Second Restatement in other areas of law).  The four factors of the “significant relationship” test “are to be evaluated according to their relative importance with respect to the particular issue.”  Waddoups, 54 P.3d at 1060 (citation, alteration, and internal quotation marks omitted).

Here, Ms. ----- is a California resident.  She lives in California and operates DRASurvivors.com from California, exercising her freedom of speech protected by the Constitution of California.  In the context of an anti-SLAPP motion, these factors—domicile and the place where the speech occurred—are the most important factors in the significant relationship test.  See Chi v. Loyola University Medical Ctr., 787 F. Supp. 2d 797, 803 (N.D. Ill. 2011) (“Though the place of injury is a central factor in determining what law governs a tort claim, in the anti-SLAPP context this factor is less important. . . . In light of [the policy goals of anti-SLAPP statute], the place where the allegedly tortious speech took place and the domicile of the speaker are central to the choice-of-law analysis on this issue.”).  When controversial speech on matters of public importance is “initiated within the state’s borders,” that state “has a strong interest in having its own anti-SLAPP law applied to the speech of its own citizens.”  Id.

The other factors also weigh in favor of California law and the California anti-SLAPP statute applying in this case. Ms. ----- has no connections to Utah; she has only visited Utah once, when she was an eleven-year-old child.  (------- Decl. ¶ 40.)  To the extent DRA has suffered reputational injury, it is more likely to have occurred in California than in Utah, as more than twice as many visitors to Ms. -----’s website are from California than Utah.  (Id. ¶  39.)  Indeed, many more viewers have accessed Ms. -----’s website from California than from any other state in the country.  Id.  Further, there is no relationship between Ms. ----- and DRA—Ms. ----- only learned about the Plaintiff because it sent representatives to California to market its program on a television show.  Other than the fact that DRA is a Utah company, Utah has no connection to this lawsuit.  Utah has even less of an interest because DRA solicits customers throughout the United States—not only Utah—and former DRA students, such as the Declarants, return to their home states after leaving DRA.  [Citation].

As a citizen of California, Ms. ----- is entitled to the protection of her state’s anti-SLAPP statute.  See Duffy v. Godfread, No. 13-cv-1569, 2013 WL 4401390, at *4 (N.D. Ill. Aug. 14, 2013) (unpublished) (applying forum state’s law for defamation claim and the non-forum state’s anti-SLAPP statute, reasoning that “[s]tates have strong interests in the application of their own anti-SLAPP laws to their own citizens’ speech; see also Competitive Technologies v. Fujitsu Ltd., 286 F.Supp.2d 1118, 1158 (N.D. Cal. 2003) (“The court held that the anti-SLAPP statute applied on the basis that ‘California has a great interest in determining how much protection to give California speakers such as the Chronicle.’”); Chi, 787 F. Supp. 2d at 803 (“Though the place of injury is a central factor in determining what law governs a tort claim, in the anti-SLAPP context this factor is less important. . . . [T]he place where the allegedly tortious speech took place and the domicile of the speaker are central to the choice-of-law analysis on this issue. A state has a strong interest in having its own anti-SLAPP law applied to the speech of its own citizens . . . .”); Underground Solutions, Inc. v. Palmero, --- F.3d ---, 2014 WL 1979362, at *2 (N.D. Ill. 2014) (collecting cases).

Additionally, this Court has previously considered and granted a motion to strike under California’s anti-SLAPP statute.  See USANA Health Sciences, Inc. v. Minkow, No. 2:07-cv-159 TC, 2008 WL 619287, at *3 (D. Utah Mar. 4, 2008) (unpublished) (concluding a California defendant “can bring a motion to strike under the California anti-SLAPP statute in this lawsuit” brought by a Utah plaintiff).[5]  Taking these factors into consideration, this Court should hold that California is the state with the most significant relationship to the claims and apply California’s anti-SLAPP statute.[6]

B.                 California’s Anti-SLAPP Law Requires Dismissal of DRA’s Lawsuit.

“California law provides for pre-trial dismissal of ‘SLAPPs’: ‘Strategic Lawsuits against Public Participation.’”  Batzel v. Smith, 333 F.3d 1018, 1023–24 (9th Cir. 2003) (citation omitted).  “These are lawsuits that ‘masquerade as ordinary lawsuits’ but are brought to deter common citizens from exercising their political or legal rights or to punish them for doing so.”  Id. at 1024 (citation omitted).  “‘The anti-SLAPP statute was enacted to allow for early dismissal of meritless first amendment cases aimed at chilling expression through costly, time-consuming litigation.”  Id. (citation omitted).

In ruling on an anti-SLAPP motion, the statute “shall be construed broadly.”  Cal. Code Civ. Proc. § 425.16(a); Briggs v. Eden Council for Hope & Opportunity, 969 P.2d 564, 572 (Cal. 1999) (“providing that the statute shall be construed broadly”) (citations omitted and internal quotation marks omitted); Manufactured Home Communities, Inc. v. County of San Diego, 655 F.3d 1171, 1176 (9th Cir. 2011) (“The legislature instructed courts that the statute ‘shall be construed broadly.’”) (citation omitted); Greater Los Angeles Agency on Deafness, Inc. v. Cable News Network, Inc., 742 F.3d 414, 421 (9th Cir. 2014) (noting that California’s anti-SLAPP statute must be construed broadly in federal court).

California’s anti-SLAPP statute provides in relevant part:

A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.

Cal. Code Civ. Proc. § 425.16(b)(1).

There are two parts to a California anti-SLAPP motion to strike:

“First, the court must decide whether the party moving to strike a cause of action has made a threshold showing that the cause of action arises from any act in furtherance of the moving party’s right of petition or free speech.”  Save Westwood Village v. Luskin, 233 Cal. App. 4th 135, 141-42 (Cal. Ct. App. 2014) (citations, alteration, and internal quotation marks omitted). 

Second, “[i]f the court finds that a defendant has made the requisite threshold showing, the burden then shifts to the plaintiff to demonstrate a probability that the plaintiff will prevail on the claim.”  Id. at 142 (citations and internal quotation marks omitted).  To satisfy this second prong, DRA “must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.”  Wilson v. Parker, Covert & Chidester, 50 P.3d 733, 739 (Cal. 2002) (citation omitted). 

When “an anti-SLAPP motion [is] brought as to an entire complaint containing several causes of action, a part of a cause of action could be struck because the plaintiff failed to establish a probability of prevailing as to that particular part.”  Cho v. Chang, 161 Cal. Rptr. 3d 846, 850 (Cal. Ct. App. 2013) (citation omitted) (emphasis in original).  In other words, the Court can strike certain parts of a cause of action (i.e., certain subparagraphs of the allegedly defamatory statements listed in paragraph 11 of the Amended Complaint).

1.                  DRA’s Amended Complaint Concerns Protected Activity.

Applying California’s two-part test, the initial issue is whether DRA’s Amended Complaint concerns an “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue.’”  Cal. Civ. Proc. Code § 425.16(e); Save Westwood Village, 233 Cal. App. 4th at 141.  It does.

Cal. Civ. Proc. Code § 425.16(e) states that an act is “in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue” includes the following:

(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

Cal. Civ. Proc. Code § 425.16(e) (emphasis added).

Subsection (3), bolded above, applies in this case.  Subsection (4) also applies, but does not require a separate analysis.  As to the first part of subsection (3), DRA’s Amended Complaint is entirely premised upon statements Ms. ----- allegedly made on her website or on public Facebook pages.  (See Am. Compl. ¶ 11).  Under California law, a publicly accessible website is considered a “public forum” for purposes of satisfying subsection (3).  See Hupp v. Freedom Communications, Inc., 163 Cal. Rptr. 3d 919, 923 (Cal. Ct. App. 2013) (“[W]eb sites accessible to the public are ‘public forums’ for purposes of the anti-SLAPP statute.”) (citing Barrett v. Rosenthal, 146 P.3d 510, 514 n.4 (Cal. 2006) (alteration omitted)).  Indeed, the website does not have to even allow comments or other public participation, so long as it is publicly available over the Internet.  See Wilbanks v. Wolk, 17 Cal. Rptr. 3d 497, 505 (Cal. Ct. App. 2004). 

Accordingly, the only remaining issue is whether Ms. -----’s allegedly defamatory statements on DRASurivors.com concern a matter of “public interest.”  “Like the SLAPP statute itself, the question whether something is an issue of public interest must be construed broadly.”  Hecimovich v. Encinal Sch. Parent Teacher Organization, 137 Cal. Rptr. 3d 455, 466 (Cal. Ct. App. 2012) (citations and internal quotation marks omitted).  While “Section 425.16 does not define ‘public interest’ or public issue,’” courts have noted “that no standards are necessary because courts and attorneys will, or should, know a public concern when they see it.”  Cross v. Cooper, 127 Cal. Rptr. 3d 903, 912 (Cal. Ct. App. 2011) (citations, alterations, and internal quotation marks omitted).

As explained above, one reason Ms. ----- launched DRASurvivors.com was to allow former DRA students to share publicly their experiences at DRA.  (Papciak Decl. ¶ 29.)  Their statements describe, among other things, DRA staff inflicting physical and mental abuse on children.  The declarations submitted in support of this motion confirm the statements of other DRA survivors submitted to Ms. -----’s website.  (See Declaration of -------  (“Graham Decl.”); Declaration of ------- . (“------- . Decl.”); Declaration of Christopher Makaron (“Makaron Decl.”); and Declaration of ------- -------  (“-------  Decl.”), all files concurrently herewith.)  Without question, such statements about child abuse at a residential treatment program are of great public interest.  See Rivera v. First Databank, Inc., 115 Cal. Rptr. 3d 1, 6 (Cal. Ct. App. 2010) (“An issue of public interest . . . is any issue in which the public is interested.” (citation and alteration omitted) (emphasis in original)); see also Wong. v. Tai Jing, 117 Cal. Rptr. 3d 747, 759 (Cal. Ct. App. 2010) (“[C]onsumer information that goes beyond a particular interaction between the parties and implicates matters of public concern that can affect many people is generally deemed to involve an issue of public interest for purposes of the anti-SLAPP statute.” (citations omitted)).

Courts consider certain factors to determine whether an issue is one of public interest.  These factors include: (1)(1) “‘public interest’ does not equate with mere curiosity;” (2) “something of concern to a substantial number of people;” (3) “some degree of closeness between the challenged statements and the asserted public interest;” (4) “focus of the speaker’s conduct should be the public interest;” and (5) “those charged with defamation cannot, by their own conduct, create their own defense by making the claimant a public figure.”  Terry v. Davis Cmty. Church, 33 Cal. Rptr. 3d 145, 153–54 (Cal. Ct. App. 2005) (citation omitted).

Some examples of issues of public interest within SLAPP law include:

·                     Statements about “safety in youth sports” and “problem coaches/problem parents in youth sports.”  See Hecimovich, 137 Cal. Rptr. 3d at 469.

·                     Statements about a patient’s plastic surgery experience.  See Gilbert v. Sykes, 53 Cal. Rptr. 3d 752, 761 (Cal. Ct. App. 2007).

·                     Statements about “protection of children in church youth programs” and “inappropriate relationships.”  See Terry, 33 Cal. Rptr. 3d at 155.

·                     Statement about the character and qualifications of candidates for public office.  See Vogel v. Felice, 26 Cal. Rptr. 3d 350, 357 (Cal. Ct. App. 2005)

·                     Statement about the location of a registered sex offender.  See Cross, 127 Cal. Rptr. 3d at 918.

Here, the statements about child abuse at a residential treatment program unquestionably concern matters of public interest.  Ms. ----- launched DRASurvivors.com after DRA appeared on a national television show to promote itself and its methods.  Ms. ----- received numerous reports from DRA survivors, recounting their experiences at the residential treatment program.  These reports described a consistent pattern of DRA’s failure to properly treat children, including instances of physical abuse, mental abuse, and improper medical and mental health care.  (See Graham Decl.; ------- . Decl.; Makaron Decl. ¶¶ 6-9, 14-15, 22-24; and -------  Decl. ¶¶ 8-15, 18-19.)  Statements about child abuse are intrinsically matters of public interest.  There is nothing more important to the public than ensuring the proper care of our children.  Ms. -----’s website has contributed toward the public debate about DRA by allowing others to share their own experiences at DRA and reporting the experiences of former students.  All of these statements concern the treatment and education of children and DRA’s alleged mistreatment of children.  These are inherently issues of public interest.

2.                  DRA Cannot Demonstrate Any Probability of Prevailing on the Merits.

Should the Court reach the second step in the anti-SLAPP analysis, DRA “must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.”  Wilson, 50 P.3d at 739 (citations omitted).  DRA’s Amended Complaint fails in both regard.

a.                   DRA’s Complaint Is Time-Barred by the Statute of Limitations.

In Utah, the statute of limitations for libel and slander causes of action is one year.  See Utah Code Ann. § 78B-2-302(4).  Here, DRA filed its complaint on October 16, 2014.  (See Compl. (Dkt. No. 2).)  DRA’s causes of action are limited to statements made on or after October 16, 2013; however, as discussed further in Ms. -----’s Rule 12(c) Motion for Judgment on the Pleadings, DRA’s causes of action for libel, libel per se, slander, and slander per se are barred by the statute of limitations because DRA relies on certain allegedly defamatory statements made before October 16, 2013.  Therefore, DRA’s complaint is time-barred.

b.                  DRA’s Claims for Slander and Slander Per Se Fail as a Matter of Law.

Because DRA fails to allege that Ms. ----- published any allegedly defamatory statements orally, its causes of action for slander and slander per se fail as matters of law.  In the Amended Complaint, DRA merely states that upon information and belief, Ms. ----- made other defamatory statements in writing and orally.  (See Am. Compl. ¶ 12.)  DRA’s failure to identify any oral communication is fatal to its slander and slander per se causes of action.  As further discussed in Ms. -----’s Rule 12(c) Motion for Judgment on the Pleadings, DRA’s slander and slander per se claims must fail as a matter of law.  See Zoumadakis v. Uintah Basin Med. Ctr., Inc., 2005 UT App 325, ¶ 3, 122 P.3d 891.

c.                   DRA Cannot Satisfy the Clear and Convincing Standard that the Allegedly Defamatory Statements Were Made with Actual Malice.

“Under Utah law, a defamation claim requires the plaintiff to show ‘that defendants published the statements concerning him, that the statements were false, defamatory, and not subject to any privilege, that the statements were published with the requisite degree of fault, and that their publication resulted in damage.”  World Wide Ass’n of Specialty Programs v. Pure, Inc., 450 F.3d 1132, 1136 (10^th Cir. 2006) (citation omitted).  Plaintiffs who are either public figures or limited-purpose public figures “must demonstrate by a standard of clear and convincing evidence that the defamatory statement was made with ‘actual malice.’”  See id.  “[A]ll-purpose public figures occupy positions of such persuasive power and influence that they may hold sway on any issue with which they choose to become involved.”  Wayment v. Clear Channel Broadcasting, Inc., 2005 UT 25, ¶ 22, 116 P.3d 271.  “[A] limited-purpose public figure is only a public figure with respect to a specific issue.”  World Wide Ass’n of Specialty Programs, 450 F.3d at 1136 (citation omitted).  Utah’s test for whether a plaintiff is a limited-purpose public figure is as follows:

First, the court must isolate the specific public controversy related to the defamatory remarks.  Next, the court should examine the type and extent of the plaintiff’s participation in that public controversy to determine whether, under Gertz, he has thrust himself to the forefront of the controversy in order to influence the resolution of the issues involved.

Id. at 1136–37 (citation, alterations and internal quotation marks omitted).

Here, DRA is at a minimum, a limited-purpose public figure.  Just like World Wide Ass’n of Specialty Programs, the public controversy at issue is how to appropriately provide treatment to teenagers in residential treatment programs.  See id. at 1137.  DRA alleges Ms. ----- made defamatory remarks about DRA’s practices and its residential treatment program.  (See Am. Compl. ¶ 11.)  DRA promotes itself as a world class therapeutic treatment program for children.  (See Diamond Ranch Academy website, http://www.diamondranchacademy.com (last visited March 9, 2015).  DRA has also placed itself in the national spotlight by offering its services on Dr. Drew’s Lifechangers television show that aired on the CW network on January 31, 2012, and by courting publicity by giving media interviews.  (See supra § III.C.)

Since DRA is—at a minimum—a limited-purpose public figure, DRA must demonstrate by a clear and convincing standard that Ms. ----- made the allegedly defamatory statements with actual malice.  See World Wide Ass’n of Specialty Programs, 450 F.3d at 1136.  “Actual malice is defined as knowledge that the statement was false or with reckless disregard of whether it was false or not.”  Id. (citation, alteration and internal quotation marks omitted).  DRA cannot prove that Ms. ----- acted with actual malice.  In fact, the declarations submitted to this Court by former DRA students support Ms. -----'s position that these statements are truthful.  (See Graham Decl.; ------- . Decl.; Makaron Decl.; and -------  Decl.)  Ms. ----- has consistently sought to ensure the accuracy of the material on her website.  Before she launched the website, she obtained testimony and statements from more than two dozen former students of DRA, who all provided similar details of their experiences at DRA.  (Papciak Decl. ¶¶  29-30.)  As material was posted to the website, Ms. ----- continued to confirm with former DRA students to ensure that the information posted was accurate.  (Id. ¶¶ 31-32.)   DRA cannot prove that Ms. ----- made the allegedly defamatory statements with reckless disregard of their veracity.

d.                  DRA’s Intentional Interference with Prospective Economic Advantage Claim Fails.

“In order to win a tortious interference claim under Utah law, a plaintiff must now prove (1) that the defendant intentionally interfered with the plaintiff’s existing or potential economic relations, (2) by improper means, (3) causing injury to the plaintiff.”  Eldridge v. Johndrow, 2015 UT 21, ¶ 70, 779 Utah Adv. Rep. 112 (internal quotation marks and alteration omitted).  The Utah Supreme Court recently rejected the improper-purpose rule and held that “a claim for tortious interference may only succeed where the defendant has employed an improper means.”  Id. ¶ 14.  “An ‘improper means’ is shown when the plaintiff proves that the defendant’s means of interference were contrary to statutory, regulatory, or common law or violated an established standard of a trade or profession.”  Pratt v. Prodata, Inc., 885 P.2d 786, 788 (Utah 1994) (overruled on other grounds) (citation and internal quotation marks omitted).

Here, after watching DRA representatives market their program on national television, reviewing Facebook groups about DRA, contacting former DRA students, and obtaining testimony from former students under penalty of perjury, Ms. ----- launched DRASurvivors.com.  Reports from former students and a summary of these reports were posted on the website.  The purpose of the website is to provide information from former attendees at DRA and to allow individuals to submit descriptions of their experiences at DRA.  As a youth advocate, Ms. -----’s purpose in launching and maintaining DRASurvivors.com is to advocate on behalf of children.  Furthermore, Ms. ----- exercised her freedom of speech and, as demonstrated in this motion and the motion for judgment on the pleadings, Ms. -----’s actions were not contrary to statutory or common law.  DRA cannot prove that Ms. ----- intentionally interfered with DRA’s existing or potential economic relations by improper means.  See Pratt, 885 P.2d at 788.

3.                  Section 230 of the Communications Decency Act Bars DRA’s Claims.

“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”  47 U.S.C. § 230(c)(1).  “Publishers” of information are immune under Section 230.  See Carafano v. Metrosplash.com. Inc., 339 F.3d 1119, 1123 (9th Cir. 2003) (“the Batzel decision joined the consensus developing across other courts of appeals that 230(c) provides broad immunity for publishing content provided primarily by third parties”) (citations omitted); Jones v. Dirty World Entertainment Recordings LLC, 755 F.3d 398, 416 (6th Cir. 2014) (“The CDA expressly bars 'lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content.’”); Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1102 (9th Cir. 2009) (“We have indicated that publication involves reviewing, editing, and deciding whether to publish or to withdraw from publication third-party content.”).

Here, to the extent DRA’s claims are based on the posting of statements submitted by other individuals, they are barred by Section 230.  Ms. ----- operates a website, which is an interactive computer service.  Ms. ----- obtained statements from, among others, former DRA students and either posted those statements to her website or edited theses statements before posting, both of which are protected by Section 230.  See Batzel, 333 F.3d at 1031 (“[A] central purpose of the Act was to protect from liability service providers and users who take some affirmative steps to edit the material posted.  Also, the exclusion of ‘publisher’ liability necessarily precludes liability for exercising the usual prerogative of publishers to choose among proffered material and to edit the material published while retaining its basic form and message.”); (Papciak Decl. ¶¶ 33-35.).  Because “Congress granted most Internet services immunity from liability for publishing false or defamatory material so long as the information was provided by another party,” this Court should conclude that DRA’s claims against Ms. ----- based on the submission of others must fail.  See Carafano, 339 F.3d at 1122; Ben Ezra, Weinstein, and Co., Inc. v. America Online, Inc., 206 F.3d 980, 986 (10th Cir. 2000) (“Congress clearly enacted § 230 to forbid the imposition of publisher liability on a service provider for the exercise of its editorial and self-regulatory functions.”); (Papciak Decl. ¶¶ 33-35.). 

C.                Amendment Would Be Futile.

For all of the above reasons, DRA’s Amended Complaint is subject to an anti-SLAPP motion under Cal. Code Civ. Proc. § 425.16.  Moreover, DRA cannot overcome the above defects by seeking leave to amend because DRA previously amended its complaint and further amendment would be futile.  See Wininger v. SI Mgmt., L.P., 33 F. Supp. 2d 838, 843-44 (N.D. Cal. 1998).  DRA’s entire case is based on statements made by Ms. ----- while exercising her freedom of speech.

D.                An Award of Costs and Fees is Mandatory.

Lastly, under Code Civ. Proc. § 425.16(c)(1), “a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.”  This provision is mandatory.  Ray Charles Found. v. Robinson, 919 F. Supp. 2d 1054, 1067 (C.D. Cal. 2013) (“Because Defendants have prevailed on their anti-SLAPP motion, attorney’s fees are mandatory and the Court awards them.” (citations omitted)).  Accordingly, Ms. ----- asks that the Court award her reasonable costs and fees, the evidence for which and amount of which would be submitted following a ruling granting this motion.

IV.             CONCLUSION

For the reasons discussed above, Ms. ----- respectfully asks that the Court grant this motion.

DATED this __ day of March 2015.

                                                                                   

Anthony C. Kaye, Esq.

Edward Chang, Esq.

Zaven A. Sargsian, Esq.

Ballard Spahr LLP

Ira A. Burnim, Esq.

Jennifer Mathis, Esq.

Julia Graff, Esq.

Andrew Christy, Esq.

Bazelon Center For Mental Health Law

Attorneys for Defendant, ------- -----

---

[1] After Ms. ----- married, she changed her legal name to------- -------.  Since Diamond Ranch Academy filed its complaint against ------- -----, this motion will refer to her as ------- -----, Ms. -----, or Defendant.

[2] -.-is known to be a minor and is identified only by her initials pursuant to Rule 5.2(a)(2) of the Federal Rules of Civil Procedure.

[3] SLAPP is the acronym for Strategic Lawsuit against Public Participation.

[4] For the Court’s convenience, the YouTube videos referenced herein are also being submitted to the Court on the enclosed disk attached hereto as Exhibit 1.

[5] For the Court’s convenience, a copy of this opinion is attached hereto as Exhibit 7.

[6] Any argument by DRA that California’s anti-SLAPP statute conflicts with the Federal Rules of Civil Procedure must fail.  See United States ex rel. Newsham v. Lockheed Missiles & Space Co., Inc., 190 F.3d 963, 972 (9th Cir. 1999); Thomas v. Fry’s Electronics, Inc., 400 F.3d 1206, 1206 (9th Cir. 2005) (noting “that California anti-SLAPP motions to strike and entitlement to fees and costs are available to litigants proceeding in federal court, and that these provisions do not conflict with the Federal Rules of Civil Procedure”).