Zeidenfeld v. Stetler CA2/1

Filed 10/3/22 Zeidenfeld v. Stetler CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

ALVIN ZEIDENFELD, B308360

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 20STCV02079)
v.

DAVID STETLER et al.,

Defendants and Appellants.

APPEAL from an order of the Superior Court of
Los Angeles County, Rupert A. Byrdsong, Judge. Affirmed in
part and reversed in part.
Greenberg Traurig, Tyler R. Andrews and Bethany L. Rabe
for Defendants and Appellants.
Klapach & Klapach, Joseph S. Klapach; Singh, Singh &
Trauben and Thomas K. Richards for Plaintiff and Respondent.
____________________________
 “Fantasy sports leagues allow participants to ‘manage’
virtual teams of professional players in a given sport throughout
a sport’s season and to compete against other fantasy sports
participants based upon the actual performance of those players
in key statistical categories. Fantasy sports have become
extremely popular in recent years. They have earned a place in
modern popular culture and are the subject of countless
newspaper and magazine articles, books, internet message
boards and water-cooler conversations.” (Humphrey v. Viacom,
Inc. (D.N.J. June 20, 2007, No. 06-2768 (DMC)) [2007 WL
1797648, at p. *1].) This case involves statements made on
Twitter about a prominent daily fantasy sports analyst, who
describes himself as having the most followers of any daily
fantasy sports analyst on Twitch and YouTube.
After plaintiff Alvin Zeidenfeld filed a complaint alleging
two counts of per se defamation, defendants David Stetler and
Fantasy Cruncher, Inc. (collectively defendants) filed a motion
to dismiss pursuant to Code of Civil Procedure section 425.16.1
Section 425.16, “[f]amiliarily known as the anti-SLAPP
statute . . . allows defendants to seek early dismissal of
unmeritorious claims arising from protected speech and
petitioning activities.”2 (Bonni v. St. Joseph Health System
(2021) 11 Cal.5th 995, 1004.) Defendants challenge the trial
court’s order denying their anti-SLAPP motion.

1Undesignated statutory citations are to the Code of Civil
Procedure.
2 SLAPP stands for “strategic lawsuit against public
participation.” (Jackson v. Mayweather (2017) 10 Cal.App.5th
1240, 1250, fn. 1 (Jackson).)

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 We apply the required two-step framework in determining
whether the trial court’s ruling was error. We agree with the
trial court’s finding as to step one, to wit, that plaintiff’s
defamation per se claims arise out of protected activity.
Specifically, plaintiff’s defamation claims arise from speech in a
public forum concerning an issue of public interest. (Clarity Co.
Consulting, LLC v. Gabriel (2022) 77 Cal.App.5th 454, 462.) As to
step two—whether plaintiff has established with admissible
evidence, a “probability” of prevailing on his claims (Code Civ.
Proc., § 425.16, subd. (b)(1)), or as our Supreme Court has
summarized prong two, demonstrated that his claims have
“ ‘ “minimal merit” ’ ” (Wilson v. Cable News Network, Inc. (2019)
7 Cal.5th 871, 884 (Wilson))—we conclude plaintiff has satisfied
his prong two burden only as to one of his defamation per se
claims. The trial court thus erred in denying the anti-SLAPP
motion as to both defamation per se claims, and we affirm in part
and reverse in part the order denying defendants’ anti-SLAPP
motion.

BACKGROUND
Although the parties agree on very little, they appear to
agree that plaintiff and defendants are involved in the daily
fantasy sports (DFS) world, albeit in different contexts.
According to plaintiff, DFS players build teams of professional
athletes and compete against each other with scores based on the
athletes’ performances in real-world competitions. Defendants
objected to this statement as unqualified expert testimony, but

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offered a similar description of DFS.3 According to plaintiff, “[i]n
the United States, the DFS industry is dominated by two
competing services: the New York-based FanDuel, and the
Boston-based DraftKings, each, upon information and belief with
an estimated value of at least $15 billion.” (Italics omitted.)
Plaintiff stated that DFS prize pools often reach millions of
dollars.
Plaintiff describes himself as “a daily fantasy sports
analyst and contributor and an online media personality
professionally known as ‘Smizzle’ or ‘Smizz.’ ” He began working
as an analyst in 2013. Plaintiff represents that currently, he
“produce[s] DFS content across multiple platforms, including
articles, podcasts, radio shows, and digital video and live
television programming.” He provides “advice and commentary
on how to win daily fantasy sports . . . .” Plaintiff boasts 50,000
followers on his Twitter account. Plaintiff worked at ESPN and
DraftKings, and then produced his own content. When he
worked for ESPN, he appeared on a cable show. According to
plaintiff, he has “the largest following/subscribers amongst any
DFS content creator” on the streaming services YouTube and
Twitch.
Defendant Stetler describes himself and his company
defendant, Fantasy Cruncher, Inc., as “well known figures in the
often rough-and-tumble world of online daily fantasy sports
(DFS).” According to defendants, they “often engage in jabs,
barbs, or ‘smack-talking’ on social media with others in the DFS
industry.” According to defendants, “Fantasy Cruncher, Inc. is a

3 The trial court did not rule on the parties’ numerous
evidentiary objections and the parties’ do not raise them on
appeal.

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popular website and efficiency tool for DFS players.” It allows
“frequent DFS players to create multiple optimal lineups for use
on DFS operator sites . . . . ”

1. First amended complaint
Plaintiff’s first amended complaint, the operative pleading,
alleges two causes of action. In his first cause of action for
defamation per se, plaintiff alleged that using Fantasy
Cruncher’s account, Stetler posted the following message on
Twitter: “I get why you are soooo outraged. How did the lawsuit
you had vs. your own wife turn out?” (We refer to this allegedly
defamatory statement as the Lawsuit Statement.) The post was
in response to plaintiff’s following statement: “Any personality or
company who works with them after this round of awfulness will
have a hard time washing that stink off them for the rest of the
time they work in this industry. [¶] Choose your partners
wisely.” The operative complaint does not identify “them” or “this
round of awfulness.” According to defendants, Zeidenfeld posted
the statement after Fantasy Cruncher’s tweet of “somewhat
colorful thoughts about another competitor . . . .” Specifically,
defendants believed the nonparty “should ‘jump[ ] off the
Brooklyn bridge.’ ” In a subsequent tweet, Stetler described his
position as follows: “Unpopular opinion: there are too many
people in the world. Maybe some SHOULD kill themselves.”
In a second cause of action for defamation per se, plaintiff
alleged that from Stetler’s personal account4 , Stetler posted the
following message on Twitter: “Guess not. Which isn’t the least

4 No party distinguishes between Stetler’s and Fantasy
Cruncher’s potential liability. We therefore treat the defendants
as a collective unit for purposes of this appeal.

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bit surprising. Smizz is a total fraud and this is probably the 10 th
lie he has told today. Fucking con man.” (We refer to this alleged
defamatory statement as the Con Man Statement.) Although it is
not alleged in the operative complaint, according to defendants,
Stetler tweeted the above statement after plaintiff tweeted,
“Good morning to everyone. Literally everyone, no exceptions.”
According to defendants, Stetler initially responded, “Even me?”
and then wrote the challenged tweet underlying this second
defamation cause of action.
Plaintiff alleges defendants’ statements were false and
Stetler knew they were false or acted with reckless disregard as
to their truth. Plaintiff further alleges a reader would
understand the Con Man Statement to refer to plaintiff’s
profession as a daily fantasy sports analyst and commentator.

2. Anti-SLAPP motion
Defendants filed a special motion to strike the complaint
pursuant to section 425.16. Defendants argued that their speech
is constitutionally protected and plaintiff could not demonstrate a
probability of success on either defamation per se cause of action.
Defendants asserted that the public is “undoubtedly interested”
in plaintiff. Defendants stated DFS was experiencing “booming
popularity.” According to defendants, their “ ‘trash talk’ about
Plaintiff in this type of environment is simply ‘rhetorical
hyperbole,’ not actionable defamation.”
In his declaration in support of the anti-SLAPP motion,
Stetler averred that “it is very common in the DFS world for
players and entities to engage in jabs, barbs, or ‘smack-talking’
with each other. People in the DFS community understand
this, are used to seeing (if not engaging in) banter and trash-

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talking . . . .” Stetler believes that “trash-talking” is “not take[n]”
“very seriously.”
Stetler personally “dislike[s] the type of service and
analysis offered by Smizz . . . .” Stetler, however, recognizes that
plaintiff has “fans and followers and apparently does well for
himself as a media personality and commentator.” According to
Stetler, he and plaintiff have a “public feud.” Stetler claimed he
believed that plaintiff was involved in litigation adverse to his
wife because he obtained that information from a person who
worked with plaintiff’s wife. Stetler thought his “obvious . . .
insult” that plaintiff was “a total fraud and this is probably the
10th lie he has told today. Fucking con man” was “said in a
joking, ‘smack-talking’ manner.” Stetler did not aver that he
believed the Con Man Statement was true.

3. Opposition to motion to dismiss
In opposing the anti-SLAPP motion, plaintiff argued the
“statements do not implicate a public issue, contribute nothing to
a public debate and, instead, are singularly intended to harm
Plaintiff’s reputation.” Plaintiff further argued that his causes of
action do not involve a statement of public interest.
In his supporting declaration, plaintiff contended the
challenged Con Man Statement could be understood as
undermining his credentials and portraying him as a “career
losing player” in the DFS arena. Specifically, according to
plaintiff, the import of the challenged Con Man Statement was to
cast doubt on his advice and opinions as an analyst and
undermine his reputation for integrity. Plaintiff stated that the
DFS community would interpret defendants’ “ ‘fraud’ ” and
“ ‘conman’ ” statement as bearing on plaintiff’s credentials as an
analyst. Plaintiff asserted that a DFS reader would understand

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the comments to mean that plaintiff engages in acts of fraud and
deception. Plaintiff also asserted that the Lawsuit Statement
attacked his “integrity and values within the DFS community,
specifically with the intent of harming [his] professional
reputation.” According to plaintiff, neither he nor his wife filed a
lawsuit against the other.
Plaintiff elaborated, “[B]y virtue of Stetler, the owner of one
of the most prominent DFS optimizing companies in the DFS
business, directly accusing me of being a total fraud, conman and
prolific liar, the context of Stetler’s message is that, contrary to
my representations to the DFS community and public, I do not
have a winning historical record in DFS and, instead, that I am a
career losing player. Stetler’s comments, however, are false.
Over the course of my career in DFS, I have a winning record and
have in fact won far more than I have lost.” Plaintiff also
contended, “As part of my marketing and promotion as a daily
fantasy analyst and online personality who provides advice and
commentary on how to win daily fantasy sports, I rely upon my
success and accomplishments as a daily sports fantasy player to
instill confidence in my audience that I am qualified and
competent to provide daily fantasy sports advice.”
Plaintiff attached an exhibit of tweets to his declaration.
The Lawsuit Statement occurred on November 29, 2019. Also on
November 29, 2019, Fantasy Cruncher tweeted, “I’ve been the
outsider in the ‘dfs industry’ since day 1. This shit doesn’t even
register a 1 on the scale and the good ol’boy’s in the DFS industry
can eat dicks. I speak the truth cause I have never taken a dollar
from someone in any unethical manner. This is me lookin back.”
Fantasy Cruncher replied to the string of tweets regarding the
Lawsuit Statement, when it tweeted, “Is it really shit talk when

8
it’s just telling the truth?? These are the industry things most
end users don’t hear about. I just dgaf.”
Nonparties also responded to defendants’ Lawsuit
Statement. One person responded, “Well this looks like libel.”
Another responded, “Im sure there’s some truth to your tweet but
those of us in the dark want to know wat you mean.” Another
person responded, “Cmon if you really knew something, you’d be
able to back it up.” Another tweeted, “I mean Smizz is a trash
person and has treated people like trash.”
On December 2, 2019, Zeidenfeld tweeted, “Good morning
to everyone. Literally everyone, no exceptions. ” The same day,
defendants responded with the Con Man Statement.
On January 7, 2020, FC_Zach, who plaintiff indicates is “an
official Fantasy Cruncher admin account” tweeted, “Anyone who
can get sued multiple times by their own wife is someone I don’t
want to be around.” FC_Zach later tweeted, “Yes it’s true and I
don’t know how they are still married.” When another user
tweeted, “Al said its not true on stream,” FC_Zach responded,
“He’s a lie.”
On January 12, 2020, Fantasy Cruncher tweeted, “[Y]ou
[plaintiff] are the weirdest dude in all of DFS. But if you want a
fucking beat down keep talking.” Several nonparties responded
to the tweet. Fantasy Cruncher later tweeted, “He filed a lawsuit
against me for talking shit to him on twitter. I am being sued for
tweets. I cannot make this up.” Several nonparties responded to
the tweet. Fantasy Cruncher tweeted, “Can’t wait for this stupid
fucking case to get dismissed so I can really rip into this dumbass
@AlZeidenfeld. How anyone agreed to procreate with you is
beyond me. Something tells me she regrets it all.” Several
nonparties responded to the tweet.

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4. The trial court denies the anti-SLAPP motion
After a hearing, the trial court found defendants had met
their burden to show that the first amended complaint arises
from activity protected by the anti-SLAPP statute, but that
plaintiff had made a prima facie showing of prevailing on his two
defamation causes of action. Defendants appealed from the order
denying the anti-SLAPP motion. The denial of an anti-SLAPP
motion is immediately appealable.5 (Sandlin v. McLaughlin
(2020) 50 Cal.App.5th 805, 819.)

DISCUSSION
We review the trial court’s order de novo. (Monster Energy
Co. v. Schechter (2019) 7 Cal.5th 781, 788.) “A court evaluates an
anti-SLAPP motion in two steps. ‘Initially, the moving defendant
bears the burden of establishing that the challenged allegations
or claims “aris[e] from” protected activity in which the defendant
has engaged. [Citations.] If the defendant carries its burden, the
plaintiff must then demonstrate its claims have at least “minimal
merit.” ’ [Citation.] If the plaintiff fails to meet that burden, the
court will strike the claim.” (Wilson, supra, 7 Cal.5th at p. 884.)

5 Defendants incorrectly argue that our review is limited to
the second prong of the anti-SLAPP analysis because plaintiff
did not cross-appeal from the trial court’s order. A prevailing
party is not required to file a cross-appeal to preserve arguments
concerning the trial court’s reasoning. (Balla v. Hall (2021)
59 Cal.App.5th 652, 673, fn. 8.)

10
A. Plaintiff’s Defamation Claims Involve Written
Statements Made in a Public Forum in Connection
With an Issue of Public Interest
Included in the anti-SLAPP statute’s definition of protected
activity is section 425.16, subdivision (e), which provides: an
“ ‘act in furtherance of a person’s right of petition or free speech
under the United States or California Constitution in connection
with a public issue’ includes: (1) any written or oral statement or
writing made before a legislative, executive, or judicial
proceeding, or any other official proceeding authorized by law,
(2) any written or oral statement or writing made in connection
with an issue under consideration or review by a legislative,
executive, or judicial body, or any other official proceeding
authorized by law, (3) any written or oral statement or writing
made in a place open to the public or a public forum in connection
with an issue of public interest, or (4) any other conduct in
furtherance of the exercise of the constitutional right of petition
or the constitutional right of free speech in connection with a
public issue or an issue of public interest.” (§ 425.16, subd. (e);
see Briggs v. Eden Council for Hope & Opportunity (1999)
19 Cal.4th 1106, 1117–1118 [discussing types of statements
covered by anti-SLAPP statute].) Both subdivision (e)(3) and
(e)(4) require a showing that a statement be “ ‘in connection with’
an issue of public interest.” (Bernstein v. LaBeouf (2019) 43
Cal.App.5th 15, 23 & fn. 5.)
To satisfy the first prong of the anti-SLAPP analysis,
defendants rely on subdivision (e)(3), which, as set forth above,
provides anti-SLAPP protection to speech in a public forum that
is in connection with an issue of public interest. Although the
parties do not dispute that defendants made their statements in

11
a public forum, the parties vigorously dispute whether the
statements underlying plaintiff’s defamation causes of action
were made in connection with an issue of public interest.
The anti-SLAPP statute does not define “public interest.”
The preamble to the statute counsels that the statute “shall be
construed broadly” (§ 425.16, subd. (a)). Our high court explained
in FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133,
145–146 (FilmOn.com Inc.) that “a statement is made ‘in
connection with’ a public issue when it contributes to—that is,
‘participat[es]’ in or furthers—some public conversation on the
issue,” taking into account “considerations of context—including
audience, speaker, and purpose.” (FilmOn.com Inc., at pp. 151–
152.)
FilmOn.com Inc. cites favorably Rivero v. American
Federation of State, County and Municipal Employees, AFL-CIO
(2003) 105 Cal.App.4th 913, 919–924 and Weinberg v. Feisel
(2003) 110 Cal.App.4th 1122, 1132–1133. (FilmOn.com Inc.,
supra, 7 Cal.5th at p. 149.) Rivero identifies the following factors
in evaluating whether statements concern a public interest: The
statements concern: (1) a person or entity “in the public eye”;
(2) conduct that “could directly affect a large number of people
beyond the direct participants”; or (3) a “topic of widespread,
public interest.” (Rivero, at p. 924.)
Weinberg elaborates that public interest for purposes of the
anti-SLAPP statute “requires that there be some attributes of the
issue which make it one of public, rather than merely private,
interest. A few guiding principles may be derived from decisional
authorities. First, ‘public interest’ does not equate with mere
curiosity. [Citations.] Second, a matter of public interest should
be something of concern to a substantial number of people.

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[Citation.] Thus, a matter of concern to the speaker and a
relatively small, specific audience is not a matter of public
interest. [Citations.] Third, there should be some degree of
closeness between the challenged statements and the asserted
public interest [citation]; the assertion of a broad and amorphous
public interest is not sufficient [citation]. Fourth, the focus of the
speaker’s conduct should be the public interest rather than a
mere effort ‘to gather ammunition for another round of [private]
controversy. . . .’ [Citation.] Finally, ‘those charged with
defamation cannot, by their own conduct, create their own
defense by making the claimant a public figure.’ [Citation.] A
person cannot turn otherwise private information into a matter of
public interest simply by communicating it to a large number of
people.” (Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1132–
1133; see also Rand Resources, LLC v. City of Carson (2019)
6 Cal.5th 610, 621 [“ ‘ “a matter of concern to the speaker and a
relatively small, specific audience is not a matter of public
interest,” ’ and . . . ‘ “[a] person cannot turn otherwise private
information into a matter of public interest simply by
communicating it to a large number of people.” ’ ”].)
Recently, in Geiser v. Kuhns (2022) 13 Cal.5th 1238
(Geiser), our high court considered whether a demonstration “to
protest a real estate company’s business practices after the
company evicted two long-term residents from their home”
implicated a public issue.6 (Geiser, at p. 1243.) Even though the
genesis of the protest was an individual family’s eviction, about
25 other people protested in an event sponsored by an advocacy

6 The parties provided supplemental briefs addressing
Geiser’s impact, if any, on this case.

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organization. (Id. at p. 1244.) Our high court concluded that the
protest concerned an issue of public interest for purposes of the
anti-SLAPP statute even if it also involved a matter of private
concern to the individual family, who was evicted from the family
home. (Id. at p. 1249.)
The Supreme Court reasoned: “It is common knowledge
that foreclosures, evictions, and inadequate housing are major
issues in communities throughout California, and the
participation of more than two dozen members of an advocacy
group dedicated to fighting foreclosures and residential
displacement must be considered against that backdrop.”
(Geiser, supra, 13 Cal.5th at p. 1251.) The high court held that
the speech implicated a public issue even though it could also be
understood to “implicate a private dispute.” (Id. at p. 1253.)
The Geiser court also set forth a procedure for evaluating
whether an issue is in connection with the public interest. A
court is first tasked with taking the “position of a reasonable,
objective observer” to determine if the challenged speech
implicates a public issue. (Geiser, supra, 13 Cal.5th at p. 1254.)
The court must determine “what issue or issues the challenged
activity may reasonably be understood to implicate.” (Ibid.) If
we determine that the challenged speech implicates a public
issue, we must assess whether it furthers a public discussion.
(Id. at p. 1255.) Often the two steps overlap. (Id. at p. 1256.) In
making this evaluation, the court is “not concerned with the
social utility of the speech at issue, or the degree to which it
propelled the conversation in any particular direction . . . .’
[Citation.]” (Id. at p. 1255.)
Applying the reasonable objective observer test to this case,
we conclude that the challenged speech—the Lawsuit and Con

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Man Statements—implicate a public issue and furthered public
discussion. The alleged defamatory per se statements were made
in the context of prominent participants in a popular, multibillion
dollar industry. The speech occurred on a public forum where
plaintiff boasts over 50,000 followers. A reasonable objective
observer could conclude that the statements concern plaintiff’s
integrity as an influencer, with a following of 50,000, in providing
services and advice to those persons in the burgeoning fantasy
sports world. That defendants’ tweets were a matter of concern
to a substantial number of people is demonstrated by the tweets
of numerous nonparties in response to the challenged statements,
with some even requesting additional information. Because the
speech was made to a large audience, was of concern to a
substantial number of people, and involved the integrity of a
person prominent in a multibillion dollar industry, we conclude
that the challenged statements were in connection with an issue
of public interest within the rubric of the anti-SLAPP statute.
(See, e.g., Friedman v. DirecTV (S.D.C.D 2015) 262 F.Supp.3d
1000, 1004 [lawsuit alleging idea theft fell within California’s
anti-SLAPP provisions as being in connection with a public issue
or an issue of public interest because of widespread interest in
fantasy sports, the millions of fantasy sports fans, and the high
worth of the industry]; Seelig v. Infinity Broadcasting Corp.
(2002) 97 Cal.App.4th 798, 804–805 [speech among radio
personalities about person who was contestant on high profile
television show was matter in the public interest].)
The size of the audience and the context of plaintiff’s and
defendants’ prominence as influencers in a multibillion dollar
industry with a large following distinguish this case from
Du Charme v. International Brotherhood of Electrical Workers

15
(2003) 110 Cal.App.4th 107, on which plaintiff relies. In
Du Charme, an employee of a union brought defamation and
other claims when he was terminated from his assistant manager
position by the defendant union. Plaintiff argued that the
statement posted on a union’s website informing the union’s
membership that the plaintiff “had been ‘removed from office for
financial mismanagement’ ” was defamatory. (Id. at p. 112.) In
denying anti-SLAPP protection to that the statement, the
appellate court characterized it as “simply informing the local’s
members of [the plaintiff’s] termination,” and being “unconnected
to any discussion, debate or controversy.” (Id. at pp. 116, 118.)
Du Charme’s ongoing controversy requirement “only applies
where the issue is not of interest to the public at large.” (Sonoma
Media Investments, LLC v. Superior Court (2019) 34 Cal.App.5th
24, 36; see id. at p. 35 [contrasting the posting in Du Charme
with newspaper articles stating plaintiff real estate developer
was the source of his son-in-law’s funding of city council
campaigns because “[i]t is beyond dispute that elections in
general, and the financing of political advertisements in
particular, affect large numbers of people and are topics of
widespread interest.”].) Here, plaintiff’s and defendants’
undisputed prominence in a multibillion dollar industry with
tens of thousands of followers, as well as the undisputed broad
interest in defendants’ tweets regarding an ongoing feud
distinguish this case from the posting of an employee’s
termination on a union website in Du Charme.
We reach the conclusion that defendants’ statements were
made in connection with an issue of public interest, recognizing
that not all speech about a person in the public eye is necessarily
in the public interest. For example, in Albanese v. Menounos, a

16
celebrity stylist sued for defamation when a television personality
accused her of stealing. (Albanese v. Menounos (2013)
218 Cal.App.4th 923, 926.) The appellate court found that the
statements concerning the stylist’s theft were not made in
connection with a public issue. “At best, the evidence in this case
shows there is some public interest in [the plaintiff] based on her
profession as a celebrity stylist and style expert.” (Id. at p. 936.)
“[T]here is no evidence that the public is interested in this private
dispute concerning her alleged theft of unknown items . . . .”
(Ibid.) Here, in contrast to Albanese, there was evidence the
fantasy sports public was interested in defendants’ statements if
only as demonstrated by the responses from participants in that
community. (Tamkin v. CBS Broadcasting, Inc. (2011)
193 Cal.App.4th 133, 139, 143 [in suit alleging defamation and
false light invasion of privacy when plaintiffs’ names, likenesses,
marital relationship, ages, and professions were “ ‘hijacked’ ” by
writers for a television, the appellate court wrote, “[T]he creation
and broadcasting of CSI episode 913 is an issue of public interest
because the public was demonstrably interested in the creation
and broadcasting of that episode, as shown by the posting of the
casting synopses on various Web sites and the ratings for the
episode.”].) In further contrast to the stylist in Albanese, who
only worked for celebrities, here plaintiff portrays himself as an
influencer with over 50,000 followers.

B. Plaintiff Has Demonstrated Minimal Merit Sufficient
To Withstand an Anti-SLAPP Motion Only on His
Cause of Action Based on the Con Man Statement
As previously noted, at the second step in evaluating an
anti-SLAPP motion, the “plaintiff need not prove her case to the
court [citation]; the bar sits lower, at a demonstration of ‘minimal

17
merit’ [citation].” (Wilson, supra, 7 Cal.5th at p. 891.) “At this
stage, ‘ “[t]he court does not weigh evidence or resolve conflicting
factual claims. Its inquiry is limited to whether the plaintiff has
stated a legally sufficient claim and made a prima facie factual
showing sufficient to sustain a favorable judgment. It accepts the
plaintiff’s evidence as true, and evaluates the defendant’s
showing only to determine if it defeats the plaintiff’s claim as a
matter of law.” ’ [Citations.]” (Ibid.)

1. General defamation principles
“ ‘ “The elements of a defamation claim are (1) a publication
that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a
natural tendency to injure or causes special damage.” ’
[Citations.] ‘In general, . . . a written communication that is
false, that is not protected by any privilege, and that exposes a
person to contempt or ridicule or certain other reputational
injuries, constitutes libel.’ [Citation.]” (Jackson, supra,
10 Cal.App.5th at pp. 1259–1260.) “Libel” is defined as “a false
and unprivileged publication by writing, printing, picture, effigy,
or other fixed representation to the eye, which exposes any
person to hatred, contempt, ridicule, or obloquy, or which causes
him to be shunned or avoided, or which has a tendency to injure
him in his occupation.” (Civ. Code, § 45.)
Statements that tend to injure a person directly, and
without the need for explanatory matter, are libelous per se.
(Civ. Code, § 45a.)7 “A statement can also be libelous per se if it

7 Civil Code section 45a provides: “A libel which is
defamatory of the plaintiff without the necessity of explanatory
matter, such as an inducement, innuendo or other extrinsic fact,
is said to be a libel on its face. Defamatory language not libelous

18
contains a charge by implication from the language employed by
the speaker and a listener could understand the defamatory
meaning without the necessity of knowing extrinsic explanatory
matter. [Citation.] However, if the listener would not recognize
the defamatory meaning without ‘knowledge of specific facts and
circumstances, extrinsic to the publication, which are not matters
of common knowledge rationally attributable to all reasonable
persons’ [citation], the matter . . . requires pleading and proof of
special damages.” (McGarry v. University of San Diego (2007)
154 Cal.App.4th 97, 112.)
A statement must be considered in context to determine if
it has a defamatory meaning. (Balzaga v. Fox News Network,
LLC (2009) 173 Cal.App.4th 1325, 1338 [“snippets” may not be
considered out of context; see also Summit Bank v. Rogers (2012)
206 Cal.App.4th 669, 696 (Summit Bank) [court should consider
totality of the circumstances].) “ ‘ “Whether a statement declares
or implies a provably false assertion of fact is a question of law
for the court to decide [citations], unless the statement is
susceptible of both an innocent and a libelous meaning, in which
case the jury must decide how the statement was understood.” ’
[Citation.]” (Reed v. Gallagher (2016) 248 Cal.App.4th 841, 856
(Reed).)

2. The Lawsuit Statement was not libelous per se
To recap, the Lawsuit Statement was defendants’ tweet,
“How did the lawsuit you had vs. your own wife turn out?”
We conclude this statement is not defamatory per se. It does not

on its face is not actionable unless the plaintiff alleges and proves
that he has suffered special damage as a proximate result
thereof. Special damage is defined in Section 48a of this code.”

19
tend to injure a person directly without the need for explanatory
matter. (Civ. Code, § 45.) Merely stating involvement in
litigation absent more information about the litigation, would not
tend to harm a litigant’s reputation. It is undisputed that
plaintiff did not allege or present evidence of special damages—a
necessary element of a purported defamatory statement that
is not defamatory per se. Accordingly, plaintiff’s failure to
establish a probability of prevailing on his claim of defamation
per se regarding the Lawsuit Statement fails to pass step two of
the anti-SLAPP framework. (See fn.7, ante.)
Plaintiff argues that that the Lawsuit Statement shows he
“is of such inferior character and so untrustworthy that even his
own wife has sued him multiple times.” This argument is based
on a mischaracterization of the allegations in the operative
complaint. The alleged defamatory statement, quoted above,
neither references multiple lawsuits nor states plaintiff’s wife
filed suit. Although defendants in subsequent tweets refer to
multiple lawsuits, these tweets are not alleged in the operative
pleading as the basis for the defamation causes of action. To
repeat, because plaintiff alleges only per se defamation, the
alleged statement, on its face, must be defamatory without resort
to extrinsic explanatory matter. Because the Lawsuit Statement
is not such a statement, the trial court should have stricken the
cause of action based on that Statement.

3. The Con Man Statement may be understood as
relating provable facts that are libelous per se
As set forth above, the Con Man Statement recited, “Smizz
is a total fraud and this is probably the 10th lie he has told today.
Fucking con man.” Defendants argue that the statement was not
based on provable facts and instead was mere opinion, which

20
cannot support a cause of action for defamation. Defendants also
argue that the context, which was not alleged in the complaint,
shows that the statements are not libelous.
We reject defendants’ characterization of the Con Man
Statement as lacking in defamatory content because they were
published on Twitter and because, according to defendants, it is
“a common and accepted practice throughout Twitter, and in
particular withing the DFS community” to “lob” “extemporaneous
‘jabs.’ ”
We live increasingly in a world where the marketplace of
ideas is on the internet, including social media sites. We are not
aware of any California case that has held that merely because
“insults” are the purported lingua franca of social media, any
such “insults” are automatically immune from defamation
scrutiny.8 We recognize that the Twitter context here is relevant,
but it is not dispositive. (Feld v. Conway (D. Mass 2014)
16 F.Supp.3d 1, 4 [tweet made as part of “heated Internet debate”
could not be understood to state actual facts].) That being said,
California courts have recognized that statements on Twitter

8 See Dreibelbis, Note, “Social Media Defamation: A New
Legal Frontier Amid the Internet Wild West” (2021) 16 Duke J. of
Const. L. & Policy 245, 257–258 (Note, Social Media Defamation)
[observing that “[s]ocial media platforms have become the
primary news source for many Americans” and that “[s]ome
courts [citing New York as an example] treat social media speech
as per se hyperbole, citing to factors like its casual, imprecise
language, anonymity, and lack of editorial oversight,” while
others have applied “traditional defamation principles to social
media speech, pointing to the recklessness with which users post
statements and the specific knowledge claimed when asserting
falsehoods.”].)

21
can be defamatory. (Bently Reserve LP v. Papaliolios (2013)
218 Cal.App.4th 418, 428–429 [content posted on the internet
was reasonably susceptible to interpretation implying a false
assertion of fact].) “[T]he mere fact speech is broadcast across the
Internet . . . does not ipso facto make it nonactionable opinion
and immune from defamation law.” (Id. at p. 429; see also
Sanders v. Walsh (2013) 219 Cal.App.4th 855, 864 [online
commentators are not immune from defamation liability];
ZL Technologies, Inc. v. Does 1–7 (2017) 13 Cal.App.5th 603, 629
[online reviews of employer constituted actionable defamation].)
Moreover, the statements were not made on a platform alerting
the reader that the statements should be viewed with skepticism.
(Cf. Summit Bank, supra, 206 Cal.App.4th at p. 696 [statements
broadcast “ ‘Rants and Raves’ ” section of website alerted the
reader that those statements should be viewed with skepticism].)
Defendants’ efforts to analogize their statements to those
made during a heated political campaign are inapt. In Reed,
supra, 248 Cal.App.4th at p. 859, the court emphasized the
statement that plaintiff, defendant’s rival candidate for the
California Assembly, was a crook “was made during the heat of a
political campaign, a context in which the audience would
naturally anticipate the use of rhetorical hyperbole.” (Ibid.)
Under these circumstances, the Reed court held that
no reasonable person would have thought the defendant
was accusing the plaintiff of actual criminal activity. (Ibid.)
Similarly, in Rosenaur v. Scherer (2001) 88 Cal.App.4th 260,
264–265 (Rosenaur), the court found not actionable a statement
referring to a political opponent as a “ ‘thief’ ” because it would be
understood as “hyperbole” and not as a claim that a defendant
had a criminal past. The court explained: “As distasteful as such

22
a charge is, ‘[o]ur political history reeks of unfair, intemperate,
scurrilous and irresponsible charges’ [citation] which are
nonetheless protected by the First Amendment when no one
could reasonably interpret them as a defamatory fact.” (Id. at
p. 265.) Relying on the importance of the political context,
Fletcher v. San Jose Mercury News (1989) 216 Cal.App.3d 172,
190 held that an alleged defamatory statement that a former
San Jose city councilman was a “ ‘crook and a crooked politician
and I don’t want him to be reelected’ ” was mere opinion. (Id. at
pp. 190–191.)
Defendants also rely on Issa v. Applegate (2019)
31 Cal.App.5th 689, 695, which also emphasizes the special
context of political speech in evaluating an anti-SLAPP motion.
In contrast to other forms of speech, according to Issa, “political
speech” requires an “extraordinary degree of protection.” (Ibid.)
“While ‘[i]t is abhorrent that many political campaigns are mean-
spirited affairs that shower the voters with invective instead of
insight,’ in order ‘to ensure the preservation of a citizen’s right of
free expression, we must allow wide latitude.’ [Citation.]” (Ibid.)
In this context, the court concluded that the statement the
politician “ ‘[g]amed the system to line his own pockets’ ” was not
provably false. (Id. at pp. 705–706.)
In contrast to Reed, Rosenaur, Fletcher, and Issa, the case
before us does not involve a political candidate. Instead, it
involves an influencer in a prominent online industry in which
defendants apparently responded to plaintiff’s good-morning
greeting with an accusation that plaintiff is a fraud, liar, and con
man. Nothing about a good morning greeting or about the online
sports industry would allow us to conclude that defendants’
accusation is mere rhetorical hyperbole.

23
 Defendants argue their Con Man Statement is outside the
purview of defamation because the statement constitutes
nonactionable opinion. Quoting Gertz v. Robert Welch, Inc. (1974)
418 U.S. 323, 339–340 (Gertz), defendants emphasize: “However
pernicious an opinion may seem, we depend for its correction not
on the conscience of judges and juries but on the competition of
other ideas.” Subsequent to Gertz, the United States Supreme
Court decided Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1
(Milkovich), which, as described below, clarified Gertz.
Milkovich involved the defamation claim of a high school
wrestling coach who testified in administrative proceedings
involving an altercation with another team at a home wrestling
game. The defendant was the owner of a local newspaper that
printed an article stating, among other things, that students
attending the wrestling meet learned, “ ‘If you get in a jam, lie
your way out,’ ” and that any “ ‘impartial observer, knows in his
heart that Milkovich . . . lied [under oath] at the hearing . . . .’ ”
(Milkovich, supra, 497 U.S. at pp. 4–5.)
In the majority opinion,9 Chief Justice Rehnquist detailed
the evolution of defamation law, by starting with a quote from
Act III, scene 3 of Shakespeare’s Othello, “ ‘But he that filches
from me my good name [¶] Robs me of that which not enriches
him, [¶] And makes me poor indeed.’ ” (Milkovich, supra,
497 U.S. at p. 12.) The majority then notes the development of
the defamation tort and the limitations the United States
Supreme Court has imposed on that tort when a public issue is
involved or the plaintiff is a public figure. (Id. at p. 14). Included

9 Justice Brennan dissented and Justice Marshall joined in
the dissent.

24
in that jurisprudential genealogy is the court’s discussion of
Gertz, which tackled a private—as opposed to public—figure’s
“defamation actions involving statements of public concern.”
(Milkovich, at p. 15.)
The court described the language on which defendants rely
as dictum and rejected a reading of Gertz that would exempt from
defamation scrutiny statements that could be labeled as opinion:
Gertz was not “intended to create a wholesale defamation
exemption for anything that might be labeled ‘opinion.’ ”
(Milkovich, supra, 497 U.S. at p. 18.) In doing so, the majority
reasoned, “[E]xpressions of ‘opinion’ may often imply an assertion
of objective fact.” (Ibid.) As an example, the court posited, “If a
speaker says, ‘In my opinion John Jones is a liar,’ he implies a
knowledge of facts which lead to the conclusion that Jones told an
untruth. Even if the speaker states the facts upon which he
bases his opinion, if those facts are either incorrect or incomplete,
or if his assessment of them is erroneous, the statement may still
imply a false assertion of fact.” (Id. at pp. 18–19.) The majority
further explained, “[T]he statement, ‘In my opinion Jones is a
liar,’ can cause as much damage to reputation as the statement,
‘Jones is a liar.’ ” (Id. at p. 19.)
Applying these principles to the article before it, the
majority concluded that the statements in the article could
reasonably be interpreted to “imply an assertion that . . .
Milkovich perjured himself in a judicial proceeding.” (Milkovich,
supra, 497 U.S. at p. 21.) The court contrasted the statements
with “loose, figurative, or hyperbolic language which would
negate the impression that the writer was seriously maintaining
that [Milkovich] committed the crime of perjury,” and that “the
connotation that petitioner committed perjury is sufficiently

25
factual to be susceptible of being proved true or false.”
(Milkovich, supra, 497 U.S. at p. 21.)
Turning to this case, it is undisputed that plaintiff’s
business is one of selling his opinions and advice in a multibillion
dollar industry that exists almost, if not entirely, on the internet.
His currency, if you will, is his integrity. Statements on social
media calling him a con man, a liar and a fraud, can, like the
purported opinions in Milkovich, be reasonably understood by
plaintiff’s and defendants’ followers as accusing plaintiff of
corruption, an accusation that is “susceptible of being proved true
or false.” We agree with defendants when they were discussing
prong one that the subject of this appeal contributed to a public
conversation because “ ‘the owner of one of the most prominent
DFS optimizing companies in the DFS business’ is allegedly
accusing a longtime professional DFS analyst with “ ‘the largest
following/subscribers amongst any DFS content creator’ of ‘being
a total fraud, conman, and prolific liar’ ” and that the statements
concerned integrity.
Defendants’ reliance on Copp v. Paxton (1996)
45 Cal.App.4th 829 is misplaced. Before the court were written
statements like defendant had to “ ‘keep him [the plaintiff]
honest. Quite an experience. Quite a challenge[,]’ ” which the
court described as making “no factual imputation of specific
dishonest conduct capable of being proved true or false.” (Id. at
pp. 838–839.) The Copp court relied on Gertz, among other cases,
to conclude that these statements were opinions, and as such
were “not actionable as a matter of constitutional law.” (Id. at
p. 837.) We observe that Copp may no longer be persuasive in
light of the United States Supreme Court’s limitation of Gertz in
Milkovich. Assuming Copp remains viable, we conclude that the

26
Con Man Statement is capable of being proved true or false for
the reasons discussed above.
We further conclude that the Con Man Statement may be
understood as per se libelous. No additional context is necessary
to understand defendants’ accusations as having a tendency to
injure. The labels “fraud,” “con-man,” and “liar,” go to the heart
of plaintiff’s reputation for veracity and without anything more,
impugn his integrity. There are no specific facts a reader must
know to understand the defamatory meaning of calling a person a
con man, liar, and fraud. Defendants fault plaintiff for failing to
allege additional context, but no such context was necessary to
understand the defamatory meaning of the Con Man Statement.
Additionally, defendants vouched for the accuracy of the
information as well as defendants’ inside knowledge of facts
tweeting, “Is it really shit talk when it’s just telling the truth??
These are the industry things most end users don’t hear about. I
just dgaf.” For Stetler to then follow these statements with the
Con Man Statement would thus reasonably be viewed as serious,
fact-based attacks on Zeidenfeld’s integrity and not hyperbole.
Defendants rely on Rapaport v. Barstool Sports, Inc.,
(S.D.N.Y. Mar. 29, 2021, No. 18 Civ. 8783 (NRB)) 2021 WL
1178240, an unpublished federal district court case that relies on
New York law, a jurisdiction that has been described as treating
social media statements as per se hyperbole.10 In Rapaport, the
defendant referred to plaintiff as a racist, fraud, hack, wannabe,
and liar. (Id. at p. *13.) The federal district court found these

10 See Note, Social Media Defamation, at p. 258 (“New
York courts are at the forefront of treating defamatory social
media speech as per se hyperbole or opinion, and they often cite
the informal nature of the speech.”)

27
statements “represent nothing more than the . . . Defendants’
subjective evaluations of [plaintiff] that are incapable of being
objectively proven true or false.” (Ibid.) In reaching this
conclusion, Rapaport, nonetheless, noted that “calling someone a
‘liar’ is more capable of being proven true or false” than the other
statements made. (Id. at p. *14, fn. 17.) In contrast to Rapaport,
here, as explained, defendants’ statements may be reasonably
understood accusing plaintiff of corruption, an accusation that is
susceptible of being proved true or false.

4. Plaintiffs sufficiently demonstrated actual
malice
As noted earlier in our Discussion, the First Amendment
limits damages “a private individual could obtain from a
publisher for a libel that involved a matter of public concern.”
(Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. (1985)
472 U.S. 749, 751 [summarizing Gertz].) When the defamatory
statements involve a matter of public concern, a plaintiff must
show “ ‘actual malice,’ that is, knowledge of falsity or reckless
disregard for the truth.” (Dun & Bradstreet, Inc., at p. 751.)
Actual malice is not the same as ill will but requires at a
minimum “reckless disregard as to truth or falsity.” (Masson v.
New Yorker Magazine, Inc. (1991) 501 U.S. 496, 509, 511.)
Circumstantial evidence such as “anger and hostility
toward the plaintiff [citation], reliance upon sources known to be
unreliable [citations], or known to be biased against the plaintiff,”
and “failure to investigate” may, “in an appropriate case, indicate
that the publisher himself had serious doubts regarding the truth
of his publication.” (See Reader’s Digest Assn. v. Superior Court
(1984) 37 Cal.3d 244, 258.) “To support a finding of actual
malice, the failure to investigate must fairly be characterized as ‘

28
“the purposeful avoidance of the truth” ’ or the ‘ “product of a
deliberate decision not to acquire knowledge of facts that might
confirm the probable falsity of [the subject] charges.” ’
[Citation.]” (Rosenaur, supra, 88 Cal.App.4th at p. 277.)
At this stage in the proceedings, in the context of an anti-
SLAPP suit motion where plaintiff has little, if any, discovery,
the plaintiff “must establish a probability that he or she can
produce such clear and convincing evidence” “that the allegedly
defamatory statements were made with knowledge of their falsity
or with reckless disregard of their truth or falsity.”
(Overstock.com, Inc. v. Gradient Analytics, Inc. (2007)
151 Cal.App.4th 688, 700 (Overstock).)11 “ ‘Actual malice may be
proved by circumstantial or direct evidence. [Citation.] . . . .
[Citation.]’ [Citation.]” (Overstock, at p. 709.) Plaintiff has met
this standard.
Although Stetler averred he believed in the truth of the
Lawsuit Statement,12 Stetler never asserted that he believed in
the truth of his Con Man Statement. This supports the inference

11 Overstock cited Milkovich in concluding that “a false
statement of fact, whether expressly stated or implied from an
expression of opinion, is actionable.” (Overstock, supra,
151 Cal.App.4th at p. 701.)
12 With respect to the Lawsuit Statement, Stetler averred,
“I had (and still have) a sincere belief that Smizz has been
involved in litigation adverse to his wife. This was conveyed to
me by mutual acquaintance Brian . . . , who is well known in the
DFS community (and who has thousands of followers of his own).
I considered the information from Brian to be reliable, and I had
no reason to doubt it, as he claims to know and have worked with
Smizz’s wife in the past, and as far as I know, he has no reason to
make up a story like that.”

29
that he did not. Moreover, Stetler himself professed ill-will
toward plaintiff when he described a “feud” between them.
Stetler further disliked “the type of service and analysis offered
by Smizz.” Stetler’s description of his comments as “insults,”
“ ‘trash talk,’ ” and “extemporaneous ‘jabs’ ” suggest the
statements were made without investigation or reflection and
with an indifference to the truth or falsity of the statements.
Defendants’ only retort to plaintiff’s argument that defendants
acted with malice is that defendants believe the statements are
mere “hyperbolic insults,” a characterization we have rejected.
Defendants’ own tweets contain statements which, at this
early stage of the proceedings, support an inference of
recklessness to the truth of the statements. Defendants tweeted
that they wanted to “rip into this dumbass @AlZeidenfeld,” that
the “good ol’boy’s in the DFS industry can eat dicks,” and that
defendants “just dgaf.” The inference of recklessness to the truth
is supported by defendants’ description of their tweets as “trash-
talking.” Additional discovery may shed more light on the
meaning of defendants’ tweets and whether they are indicia of
recklessness to the truth.
Manzari v. Associated Newspapers Ltd. (9th Cir. 2016)
830 F.3d 881, 882–893, which applied California law, is
instructive. Manzari involved a newspaper’s publication of a
photo of the plaintiff juxtaposed next to a headline reading that
the porn industry was shut down because a performer tested
positive for HIV. The Ninth Circuit concluded that the
juxtaposition of the headline and article showed that the
newspaper acted with reckless disregard of “ ‘whether its words
would be interpreted by the average reader as a false statement
of fact.’ [Citation.]” (Id. at p. 892.) The newspaper removed

30
contextual information from the photograph prior to publishing it
and failed to “include any explanation or disclaimer” indicating
that the plaintiff was not the performer who tested positive for
HIV. (Ibid.) Even though the newspaper employees denied that
they intended to make an implication about the plaintiff, the
“willful blindness cannot immunize publishers where they act
with reckless disregard for the truth or falsity of the implication
they are making.” (Id. at p. 893.)
Similarly, here, the totality of the evidence at this early
stage persuades us that plaintiff has shown a sufficient
“probability” that he can produce clear and convincing evidence
that defendants made the Con Man Statement with knowledge of
its falsity or with reckless disregard of truth or falsity.
(Overstock, supra, 151 Cal.App.4th at p. 700.)

31
 DISPOSITION

The trial court’s order denying the anti-SLAPP motion is
affirmed in part and reversed in part. The trial court is directed
to enter a new order granting the motion insofar as it seeks to
strike the defamation cause of action based on the Lawsuit
Statement and denying it insofar as it seeks to strike the
defamation cause of action based on the Con Man Statement.
The parties shall bear their own costs on appeal.
NOT TO BE PUBLISHED.

BENDIX, J.

We concur:

ROTHSCHILD, P. J.

KELLEY, J.*

* Judge of the Los Angeles County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.

32