Argentieri v. Zuckerberg, 8 Cal. App. 5th 768

Background

Plaintiff Paul Argentieri was one of several attorneys who represented Paul Ceglia in a lawsuit alleging a 2003 contract with Mark Zuckerberg; that lawsuit was dismissed after courts found the submitted "Work for Hire" document to be a fabrication and that Ceglia spoliated evidence.
Facebook and Zuckerberg sued Ceglia’s lawyers in New York for malicious prosecution and deceit; those defendants included DLA Piper, Lippes, Kasowitz, and Argentieri.
On the day Facebook/Zuckerberg filed the malicious-prosecution complaint, Facebook’s general counsel Colin Stretch emailed a press statement asserting (among other things) that the named law firms "knew [Ceglia’s lawsuit] was based on forged documents yet they pursued it anyway."
Argentieri sued Stretch, Facebook, and Zuckerberg in California for defamation based on that press statement; defendants moved to strike under California’s anti-SLAPP statute.
The trial court granted the anti-SLAPP motion, concluding the statement was protected speech and that Argentieri could not show a probability of prevailing because the statement was privileged (both litigation privilege and the fair-and-true reporting privilege) and partly nonactionable opinion. Argentieri appealed.
The Court of Appeal affirmed, holding the litigation privilege did not apply to publication to the press but the fair-and-true reporting privilege (Civ. Code § 47(d)) did, so Argentieri had no probability of success on his defamation claim.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Stretch’s press email is protected activity under anti-SLAPP	Argentieri argued the statement was defamatory and not privileged	Respondents claimed the email was protected petition/speech and privileged	Threshold protection under anti-SLAPP conceded; analysis proceeds to merits
Whether the litigation privilege (Civ. Code § 47(b)) bars the claim	Argentieri said the privilege did not apply because the email was published to the press and not to persons with a substantial interest	Respondents argued the statement reiterated pleadings and was privileged litigation communication	Court: litigation privilege does not apply to publication to the press or to statements that do not further litigation’s objects
Whether the fair-and-true reporting privilege (Civ. Code § 47(d)) bars the claim	Argentieri argued the statement was more definitive than the complaint and not a fair/true report; also raised due-process/waiver points	Respondents (and court) argued the email fairly captured the gist of the filed malicious-prosecution complaint and was a report to a public journal	Court: §47(d) applies—the email was a fair and true report of the complaint’s gist, so privilege is absolute and bars recovery
Whether defendants waived privilege or violated due process by not raising §47(d) below	Argentieri contended defendants failed to invoke §47(d) in trial court so he lacked notice and chance to respond	Defendants relied on anti-SLAPP and other defenses; court considered §47(d) based on record	Court: no reversible due-process harm shown; §47(d) was obvious from the record and applies on the merits

Key Cases Cited

Silberg v. Anderson, 50 Cal.3d 205 (court set out the elements and policy of the litigation privilege)
Abraham v. Lancaster Cmty. Hosp., 217 Cal.App.3d 796 (discussed permissive press reporting of pleadings but limited in scope)
Susan A. v. County of Sonoma, 2 Cal.App.4th 88 (litigation privilege does not cover publication to the general press)
GetFugu, Inc. v. Patton Boggs LLP, 220 Cal.App.4th 141 (press releases to general public not protected by litigation privilege)
Rothman v. Jackson, 49 Cal.App.4th 1134 (litigating-in-the-press statements not sufficiently connected to litigation for §47(b))
Kashian v. Harriman, 98 Cal.App.4th 892 (litigation privilege is absolute when it applies)
Burrill v. Nair, 217 Cal.App.4th 357 (fair-and-true privilege requires report of an official judicial proceeding; distinguished on facts)
J-M Manufacturing Co. v. Phillips & Cohen LLP, 247 Cal.App.4th 87 (discussed absolute nature of §47(d) when applicable)
Shahvar v. Superior Court, 25 Cal.App.4th 653 (rejected broad reading of Abraham; press not a participant)
Healthsmart Pacific, Inc. v. Kabateck, 7 Cal.App.5th 416 (filing a complaint is a judicial proceeding for §47(d) purposes)