PENROSE HILL, LIMITED, еt al., Plaintiffs, v. PAUL MABRAY, Defendant.
Case No. 20-cv-01169-DMR
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
August 18,
Re: Dkt. No. 18
ORDER ON DEFENDANT‘S MOTION FOR JUDGMENT ON THE PLEADINGS AND SPECIAL MOTION TO STRIKE
Plaintiffs Penrose Hill, Limited (“Penrose Hill“) and Philip James filed this action on February 14, 2020, alleging a single state law claim for defamation against Defendant Paul Mabray. [Docket No. 1 (“Compl.“).] Jurisdiction is based on diversity.1 Mabray now moves for judgment on the pleadings pursuant to
For the reasons stated below, Mabray‘s motion under
I. BACKGROUND
A. Penrose Hill‘s Operations
The following facts are alleged in the complaint.2 Penrose Hill is a Delaware corporation with a principal place of business in New York City, New York. Compl. ¶ 5. It is a federally licensed and bonded winery business. Id. ¶ 2. Penrose Hill is one of the largest wineries in the United States, and sells millions of bottles of wine per year, both domestically and internationally. Id. ¶ 3. James founded Penrose Hill in 2015 and is currently the CEO of the company. Id. ¶¶ 12-13. He describes himself as an “entrepreneur who has spent his career working in the wine industry.” Id. ¶ 12. He has masters’ degrees in computational chemistry and business administration and has been qualified as a Certified Specialist of Wine by the Society of Wine Educators. Id. Starting in 2005, James has “built several of the largest online wine businesses in the United States” and has been recognized by various institutions for his contributions to the wine industry. Id.
Penrose Hill employs its own team of winemakers, designers, and data scientists, which has enabled it to “create its own unique portfolio of wines.” Compl. ¶ 14. Penrose Hill‘s wines have won over 1,000 wine awards since the company was founded in 2015 and are sold throughout the United States as well as internationally. Id. ¶¶ 14, 17. Penrose Hill also “sources top quality wines from around the world.” Id. ¶ 21. Unlike traditional wine businesses, Penrose Hill uses a direct-to-consumer distribution model. Id. ¶ 4. Through its website, Firstleaf.com, Penrose Hill operates the Firstleaf Wine Club (“Firstleaf“), which is an online wine subscription service. See id. ¶¶ 18-20. Members receive wines that are matched to their individual preferences through an algorithm developed by Penrose Hill‘s in-house data sciеnce team. Id. ¶ 20.
B. Allegedly Defamatory Statements
Mabray is a well-known wine blogger who has been involved in the wine industry for over two decades. Compl. ¶¶ 24-25. According to Plaintiffs, traditional wine bloggers like Mabray “do not like the disruptive nature” of services like Penrose Hill‘s because “they are frequently paid by traditional wine businesses that seek to maintain the status quo.” Id. ¶ 23. Plaintiffs also allege that Mabray has a “vested interest, including a financial interest, in the digital and e-commerce wine industries,” since he founded two internet wine companies and is the CEO of a wine industry data analytics company. Id. ¶¶ 26-28.
On December 11, 2017, Mabray published the blog post that is the subject of this defamation action (“Blog Post“). See Compl., Ex. A (blog post on medium.com
The second part of the article turns to a discussion of James, “one of wine-techs [sic] interesting characters.” Mabray reviewed James‘s positive public image as a supporter of charity and a successful wine-tech entrepreneur but then seemed to criticize that image, stating that “most of us in the industry remember a different story.” He claimed that another company James previously founded competed with a service called “Cellartracker,” and that James committed an “egregious act of scraping . . . data from Cellartracker.com.” Mabray then criticized another of James‘s business ventures for “spending a dollar to make $0.50,” laying off 35% of its employees, and eventually “transform[ing] into the Hot Topic of wine retailers.” Mabray also asserted that James started a charity fundraising campaign about a fictional device that supposedly turns water into wine. Although Mabray acknowledged that the campaign turned out to be “an elаborate stunt for a good cause,” he stated that “quite a few of the press were duped into featuring the absurd campaign claims.” He wrote that “many of us inside the wine industry were not surprised that it was yet another hoax from Philip James. Fool me once, shame on you. Fool me twice, shame on me.”
After reviewing the history of James‘s allegedly dubious past in the wine industry, Mabray announced that “now [James is] back in wine and armed with $4,000,000 he has created a tangled web of companies starting with Penrose Hill at the top.” He claimed that once “you drill down . . . past [the] parent company . . . you see they are all just shells on top of the one theme – taking plonk and repacking it.” Mabray wrote that Firstleaf is “claiming to unleash the cost shackles for the consumer to allow them exclusive access to vineyards and winemakers.” Mabray then cast doubt on that claim, stating that:
So with all this new cаdre of fakers vs makers what should we believe out from [sic] from Philip James and the his [sic] collection of companies? That he is a good actor returning to wine after two failed attempts to help the industry become better? A maker of companies to help the consumer? Or a faker, returning again to prey on the market conditions and ignorance of the consumer? Regardless of his intentions the key is that we all remain diligent in helping educate consumers on the difference between the fakers and the makers.
Id. at 5.
Plaintiffs claim that the Blog Post contains defamatory statements about Penrose Hill and James that falsely accuse them of dishonesty with respect to their wine marketing and inaccurately portray
On July 26, 2019, a non-party Twitter user posted an article and quoted some text from the source:
Retail on the high street is changing. More grocery shopping is being done online & wine choice [is] less well-informed without personal advice in store. How do you see the future of wine sales developing given the shift to more digital purchasing?
Compl., Ex. B. Another user tweeted in response: “This sounds like the Naked/Majestic route. Own-brand ranges on the up? Does this then shift the onus on producer to find distributor even more?”
Mabray then responded to that user:
PL/CL3 is more of a UK phenomenon than US (but we‘re moving that way). I don‘t think it‘s bad as long as it has purpose & transparency. Re: Naked & that ilk – don‘t get me started –
Id. (“Tweet“). The Tweet linked to the Blog Post, and the link displayed a preview of the article with the photo of James used in the Blog Post, the title of the post, and a quote from the article: “There is a new era of companies trying to capitalize on the new subscription economy in the wine industry. Some good, some fakers.” Plaintiffs claim that the Tweet constitutes a republication of the initial defamation and that it was intended to garner a larger audience for the defamatory statements. Id. ¶¶ 41-44.
Plaintiffs bring a single claim for defamation under
A. California Anti-SLAPP Motions in Federal Court
Known as the “anti-SLAPP”5 statute,
Under California law, “[t]he analysis an anti-SLAPP motion proceeds in two steps.” Iglesia Ni Cristo v. Cayabyab, Case No. 18-cv-00561-BLF, 2019 WL 3997474, at *2 (N.D. Cal. Aug. 23, 2019) (quoting Barry v. State Bar of California, 2 Cal. 5th 318, 321 (2017)). First, the court determines whether the plaintiff‘s claims are directed at “an act in furtherance of protected expression.” Metabolife, 264 F.3d at 840 (citing
A district court sitting in diversity must apply the federal standard for such motions. Under Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), federal courts sitting in diversity apply state laws to matters of substance, but federal law governs matters of procedure. See Hanna v. Plumer, 380 U.S. 460, 473 (1965). Applying state anti-SLAPP lаws in federal court raises unique considerations because many anti-SLAPP provisions are procedural and therefore may conflict with the Federal Rules of Civil Procedure. In Planned Parenthood Fed‘n of Am., Inc. v. Ctr. for Med. Progress, the Ninth Circuit discussed one such tension between California‘s anti-SLAPP law and federal procedure. 890 F.3d 828, 833 (9th Cir.), amended, 897 F.3d 1224 (9th Cir. 2018). When a defendant files an anti-SLAPP motion in California state court, “[a]ll discovery proceedings in the action” are stayed and the discovery stay “remain[s] in effect until notice of the entry of the order ruling on the motion.”
If a defendant makes an anti-SLAPP motion to strike founded on purely legal arguments, then the analysis is made under [Rule] 8 and 12 standards; if it is a factual challenge, then the motion must be treated as though it were a motion for summary judgment and discovery must be permitted.
Id. at 833 (quoting Z.F. v. Ripon Unified School District, 482 Fed. App‘x 239, 240 (9th Cir. 2012)). For purely legal challenges, there is no need for the party opposing the motion to “submit evidence showing the merit of their claims.” Id. at 834. For factual challenges, “discovery must be allowed, with opportunities to supplement evidence based on the factual challenges, before any decision is made by the court.” Id.
This court previously interpreted Planned Parenthood to mean that district courts must apply a two-step standard for evaluating anti-SLAPP motions. See Todd v. Lovecruft, Casе No. 19-cv-01751-DMR, 2020 WL 60199, at *8 (N.D. Cal. Jan. 6, 2020). First, it must apply step one of California‘s burden-shifting standard and look at whether the plaintiff has met the burden to show that the allegedly defamatory statements were made “in furtherance of protected expression.” See id. (quoting Metabolife, 264 F.3d at 840). If the plaintiff makes an adequate showing on the first step, then the court looks at whether the defendant‘s challenges are legal or factual. Id. If the challenges are legal, the court evaluates the motion under Rule 12. Id. But if the challenges are factual, then the court must permit discovery under Rule 56. Id. “Once discovery has been completed, then the court applies the ‘reasonable probability’ standard to the plaintiff‘s claims.” Id.
The current motion raises both legal and factual challenges. See Mot. at 11. Mabray‘s factual challenges are premature as no discovery has yet taken place.6 Thus, for the reasons explained above and in Todd, the court will еvaluate only Mabray‘s legal challenges to Plaintiffs’ complaint.
B. Rule 12(c) Motions
“After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings.”
III. DISCUSSION
Mabray argues that Plaintiffs’ complaint should be dismissed under
The court first addresses the threshold question of whether the complaint is timely, and then evaluates Mabray‘s anti-SLAPP and
A. Statute of Limitations
Under California law, the statute of limitations for defamation actions is one year.
Mabray published the Blog Post on December 11, 2017 and this action was filed on February 14, 2020. He asserts that the complaint is untimely as to the Blog Post because the allegedly defamatory statements contained in the article were published more than a year before Plaintiffs filed this case. Plaintiffs argue that their claim is not time-barred because Mabray‘s 2019 Tweet linking to the Blog Post constitutes a republication of the original defamation.
Whether the Tweet is a republication that resets the statute of limitations with respect to the statements in the Blog Post depends on whether the Tweet and Blog Post are part of the same “single integrated publication.” Christoff v. Nestle USA, Inc., 47 Cal. 4th 468, 477 (2009). The single publication rule applies to “the issue of any one edition of a newspaper, magazine or book; to any one broadcast over radiо or television; to any one exhibition of a motion picture; to any one theatrical performance or other presentation to an audience; and to any similar aggregate communication that reaches a large number of persons at the same time.” Rest. 2d Torts
The Ninth Circuit and California courts have not yet determined whether a website containing allegedly defamatory content is “directed to a new audience” when a defendant subsequently links to the website on a different forum. Elsewhere, courts have generally held that merely linking to or referring to a defamatory article does not constitute republication. In Salyer v. S. Poverty Law Ctr., Inc., cited by Mabray, the defendant posted an article on its website that accused the plaintiff of being a member of an extremist group who was dishonorably discharged from the military and disbarred from practicing law before military courts. 701 F. Supp. 2d 912, 913-14 (W.D. Ky. 2009) (applying Kentucky law). Several subsequent articles on the website referenced and included links to the original article. Id. at 914. The plaintiff did not argue that the later articles were defamatory, and they did not make any specific mention of him. Id. at 915. Instead, he asserted that the later articles republished the allegedly defamatory statements by referencing and hyperlinking to the original article. Id. at 916. The court held that merely referencing a prior article is not a republication:
[T]he common thread of traditional republication is that it presents the material, in its entirety, before a new audience. A mere reference to a previously published article does not do that. While it may call the existence of the article to the attention of a new audience, it does not present the defamatory contents of the article to that audience. Therefore, a reference, without more, is not properly a republication.
Id. (emphasis in original). The court noted that the outcome might be different if the later articles “restated the defamatory remarks.” Id. at 916 n. 5. The Third Circuit, applying Pennsylvania law, adopted the reasoning in Salyer, explaining:
The single publication rule advances the statute of limitations’ policy of ensuring that defamation suits are brought within a specific time after the initial publication. Websites are constantly linked and updated. If each link or technical change were an act of republication, the statute of limitations would be retriggered endlessly and its effectiveness essentially eliminated.
In re Philadelphia Newspapers, LLC, 690 F.3d 161, 175 (3d Cir. 2012), as corrected (Oct. 25, 2012). Many other courts, including one applying California law, have reached a similar result. See Sundance Image Tech., Inc. v. Cone Editions Press, Ltd., 2007 WL 935703, at *7 (S.D. Cal. Mar. 7, 2007) (holding that “linking is more reasonably akin to the publication of additional
By contrast, courts have found that potentially defamatory remarks were republished when defendants posted content that “go[es] beyond merely hyperlinking.” Enigma Software Grp. USA, LLC v. Bleeping Computer LLC (“Enigma“), 194 F. Supp. 3d 263, 277 (S.D.N.Y. 2016) (citing cases). Plaintiffs cite Larue v. Brown, where the Arizona Court of Appeals determined that republication occurred when the defendants responded to rеaders’ comments on their allegedly defamatory articles and posted “updates and rebuttals” that “re-alleged the substance of the original articles.” 235 Ariz. 440, 446 (Ariz. Ct. App. 2014). While a defamation claim based on the original articles would have been time-barred, the defendants’ later comments “added to and altered the substance of the original material by providing additional information in response to a reader‘s questions, and re-urging the truth of the original articles in response to another reader‘s criticism.” Id. Therefore, the new comments could serve as the basis for a defamation claim. Plaintiffs argue that, similar to the defendants in Larue, Mabray‘s 2019 Tweet “went beyond a mere hyperlink” because “Defendant made the conscious choice to repeat the same defamatory remarks by directing them to a new audience.” Opp. at 14, 15.
The court agrees with Mabray that the Tweеt did not republish the majority of the allegedly defamatory statements in the Blog Post. The text of the Tweet does not contain any statements about James or Penrose Hill or repeat any of the contents of the Blog Post. This is not like Larue, where the defendants added new comments that “re-alleged the substance of the original articles” and provided additional information to support their claims. See 235 Ariz. at 446. The situation here is closer to Salyer, where subsequent article‘s on the defendant‘s website linked to the allegedly defamatory article but did not change the original text of the article or repeat the contents of the article to a new audience. See 701 F. Supp. 2d at 916. Like the statements examined in Salyer, the challenged statements in the Blog Post were not presented to a new audience simply by virtue of Mabray alerting other users that the Blog Post exists.7 See id.
However, in addition to linking to the original Blog Post, the Tweet includes
The other authorities cited by Plaintiffs do not require a different result. Giuffre v. Dershowitz did not examine republication in the context of linking to prior statements; instead, the defendant argued that later statements were not republication because they were “substantively identical” to previous statements he had made. 410 F. Supp. 3d 564, 567 (S.D.N.Y. 2019). In other words, he did not just reference his prior statements but actually repeated them. See id. Here, the only statements repeated in the Tweet are those that appear in the link preview. Similarly, while Enigma did not reach the question of republication, it determined that the more recent statements repeated “almost verbatim” the allegedly time-barred statements. 194 F. Supp. at 278. While Bacon v. Nygard found that links without additional commentary may constitute a republication, it limited its observation to “the сircumstances presented here where plaintiff alleges that defendants created several media platforms specifically to attack him and promote the statements.” 2019 WL 3254983, at *7 (N.Y. Sup. Ct. July 19, 2019). The facts motivating the Bacon court‘s decision are not presented in any detail in that opinion, but the situation appears to be unique and not similar to this case. The court also seemed to accept the general trend toward finding that links without additional content do not constitute republication. See id. In any event, to the extent that Bacon contradicts the authority cited above, it is clearly an outlier.9
In sum, the Blog Post was published more than a year prior to the commencement of this action and cannot serve as the basis for a defamation action. The only allegedly defamatory statements that are not time-barred are those that appear in the 2019 Tweet. Accordingly, Plaintiffs’ claims with respect to the other statemеnts are dismissed as untimely. The subsequent analysis applies only to the statements in the Tweet.
B. Anti-SLAPP Motion
“The first step in analyzing an anti-SLAPP motion is determining whether the defendant successfully made ‘an initial
1. Public Forum
The statements at issue were published on Mabray‘s public Twitter feed. “Web sites accessible to the public . . . are ‘public forums’ for purposes of the anti-SLAPP statute.” Barrett v. Rosenthal, 40 Cal. 4th 33, 41 (2006); see also Cross v. Facebook, Inc., 14 Cal. App. 5th 190, 199 (Ct. App. 2017) (finding that “[i]t cannot be disputed that Facebook‘s website” is a public forum within the meaning of
Plaintiffs do not dispute that Twitter is a public forum for the purposes of the anti-SLAPP statute. Accordingly, Mabray has met his burden on this issue.
2. Public Interest
The anti-SLAPP statute does not define “public interest,” but “its provisions ‘shall be construed broadly’ to safeguard ‘the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.‘” Summit Bank v. Rogers, 206 Cal. App. 4th 669, 693 (2012) (quoting
Mabray asserts that the statements in the Tweet concern a matter of public interest because “the discussion of nontraditional business models for selling wine has been a subject of ongoing discussion and controversy.” Mot. at 10. He claims that they relate to the “risk of consumers being confused or misled when buying wine through online clubs and similar nontraditional channels” and that “public discussion of consumer issues is considered
Assuming without deciding that the topic of nontraditional business models for selling wine is a matter of public interest, the challenged statements in the Tweet do not have the requisite closeness to that issue. The Tweet simply asserts that private label wine “is more of a UK phenomenon than US” and relays Mabray‘s opinion that it is not “bad as long as it has purpose & transparency.” The statements in the link preview refer broadly to “fakers” within the “new subscription economy” without explanation of those terms. A generic reference to transparency in the wine industry is exactly the kind of “broad and amorphous public interest” that courts have found nоt sufficiently connected to the specific statements at issue. See Bikkina v. Mahadevan, 241 Cal. App. 4th 70, 84 (2015) (internal quotation marks and citations omitted) (statements relating to plagiarism in academic research were not sufficiently connected to the public concern about climate change); Consumer Justice Ctr. v. Trimedica Int‘l, Inc., 107 Cal. App. 4th 595, 602 (2003) (advertisements about natural alternatives to breast implants were not connected to debate about herbal supplements). In the consumer context specifically, courts have found that challenged speech relates to a matter of public concern when it does not just present negative commentary about a certain business or business practice but provides information to aid consumers in choosing which businesses to patronize. See, e.g., Wilbanks, 121 Cal. App. 4th at 900 (website providing information about investigations against insurance brokers and warning consumers to not use their services was connected to a matter of public concern); Wong v. Jing, 189 Cal. App. 4th 1354, 1367 (2010) (internet review critical of a dentist raised a public issue about the use of silver amalgam in dental fillings and the use of nitrous oxide on children); Carver v. Bonds, 135 Cal. App. 4th 328, 344 (2005) (newspaper article about a doctor involved an issue of public concern where the information provided could assist others in choosing doctors); Makaeff v. Trump Univ., LLC, 715 F.3d 254, 263 (9th Cir. 2013) (letter to the Better Business Bureau was written at least in part with the “intent to warn consumers about the educational experience at Trump University“). In this case, by contrast, the Tweet does not contain any information that would aid consumers in choosing between wine companies. It does not, for example, explain what “purpose & transparency” mean with respect to private label wine companies, give advice about how to tell a faker from a maker, or provide information about speсific unscrupulous practices. Nor does the Tweet warn consumers away from all private label wine since it explicitly acknowledges that not all such wine is bad. At most, it makes a vague negative reference to “Naked & that ilk,” but does not detail particular concerns about Naked or other unnamed companies. The link preview also does nothing more than assert that some wine companies involved in the “new subscription economy” are “fakers,” with no explanation of what that term means or how it should inform consumer choices. Therefore, the Tweet‘s vague reference to potentially poor or unethical business practices by some private wine label companies is not enough to
The contents of the Blog Post are closer to the asserted public interest, since the Blog Post lays out more detailed information about nontraditional wine businesses, specific companies, and the potential impact on consumer choices. But as the court explained above, the statements in the Blog Post are not at issue here because they are time-barred. Mabray cannot have it both ways: if his statements in the Blog Post were not republished in the Tweet for the purposes of the statute of limitations, then they may not be considered for the purpose of determining whether the challenged speech is a matter of public concern.10
In sum, Mabray has not met his burden to show that the statements in the Tweet are connected to a matter of public interest. Accordingly, thе anti-SLAPP motion is denied.
C. Rule 12(c) Motion
California law provides that a plaintiff bringing a defamation claim must show four elements: “that defendants published the statements; that the statements were about plaintiff; that they were false; and that defendants failed to use reasonable care to determine the truth or falsity.” Hecimovich v. Encinal Sch. Parent Teacher Org., 203 Cal. App. 4th 450, 470 (2012). If the plaintiff is a public figure, then he must prove that the defendant acted with “actual malice.” Makaeff, 715 F.3d at 258. Mabray argues that (1) Penrose Hill has no claim for defamation based on the statements in the Tweet because they are not “about” Penrose Hill; (2) the statements are opinion rather than fact; (3) to the extent that the statements are factual, they are substantially true; and (4) even if the statements relay false facts about James, he is a public figure who has not adequately pleaded actual malice. The court addresses only the second argument because the Tweet doеs not contain statements of fact about either Plaintiff that could be deemed “false” for the purposes of a defamation claim.
Defamation claims cannot challenge statements of opinion that do not “contain a provably false factual connotation.” Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990). Thus, a court reviewing a claim of defamation must ask the threshold question of whether a reasonable factfinder could conclude that the contested statement “implies an assertion of objective fact.” Gilbrook v. City of Westminster, 177 F.3d 839, 861-62 (9th Cir. 1999), as amended on denial of reh‘g (July 15, 1999). The Ninth Circuit has adopted a three-part test for determining whether a statement implies an assertion of fact, considering the totality of the circumstances in which it was made:
First, we look at the statement in its broad context, which includes the general tenor of the entire work, the subject of the statements, the setting, and the format of the work. Next we turn to the specific context and content of the statements, analyzing the extent of figurative or hyperbolic language used and the reasonable expectations of the audience in that particular situation. Finally, we inquire whether the statement itself is sufficiently factual to be susceptible of being proved true or false.
Underwager v. Channel 9 Australia, 69 F.3d 361, 366 (9th Cir. 1995).
Mabray argues that the statements in the Tweet do not reasonably imply assertions of facts about Plaintiffs. First, he asserts that the statements were made on a social media platform where people air personal views and in response to a “larger string of tweets offering various opinions about new distribution and sales models for wine.” Mot. at 15. Therefore, the context was such that the audience would expect persuasive argument rather than provable assertions of fact. Id.; see also Info. Control Corp. v. Genesis One Computer Corp., 611 F.2d 781, 784 (9th Cir. 1980) (“[E]ven apparent statements of fact may assume the character of stаtements of opinion, and thus be privileged, when made in public debate . . . or other circumstances in which an audience may anticipate efforts by the parties to persuade others to their positions . . . .” (internal quotation marks and citation omitted)). Second, he contends that a phrase such as “fakers not makers” is the sort of “loose, figurative” language that “tends to negate the impression that a statement contains an assertion of verifiable fact.” See Cochran v. NYP Holdings, Inc., 58 F. Supp. 2d 1113, 1123 (C.D. Cal. 1998), aff‘d, 210 F.3d 1036 (9th Cir. 2000) (quoting Milkovich, 497 U.S. at 21). Finally, Mabray argues that the term “faker” is an imprecise term that cannot be proven true or false. Mot. at 16; see Phantom Touring, Inc. v. Affiliated Publications, 953 F.2d 724, 728 (1st Cir. 1992) (holding that the words “fake” and “phony” in reference to a musical-comedy version of the Phantom of the Opera are “unprovable, since those adjectives admit of numerous interpretations“); Krinsky v. Doe 6, 159 Cal. App. 4th 1154, 1177 (2008) (finding that in the context of an online message board containing “vulgar and insulting” language, a stаtement that the plaintiff had a “fake medical degree” was obviously intended as ridicule rather than a statement of fact).
Plaintiffs’ opposition on this point focuses almost exclusively on the statements contained in the Blog Post, including statements about James‘s “egregious act of scraping” data from a competitor‘s website, the “hoax” he perpetrated with his water-to-wine fundraiser, and Plaintiffs’ alleged practice of “substituting plonk in the place of artisanal wine.” See Opp. at 18-22. However, the only statements that are actionable are those that appear in the Tweet because the Blog Post falls outside the statute of limitations for defamation. The Tweet itself, insofar as it has any connection to either Plaintiff, at most implies that they may be “fakers.” Even that much is unclear: the text snippet acknowledges that some private label wine cоmpanies are good, so the reference to James in the Tweet preview does not clearly imply that he is a “faker” rather than a “maker.” Moreover, while “faker” might imply an assertion of fact in some circumstances,
Accordingly, the court finds that the contested statements contained in the Tweet do not reasonably imply an assertion of objective fact that could serve as the basis of a defamation claim. Mabray‘s
IV. LEAVE TO AMEND
Under
Here, although it seems doubtful that the issues identified in this order can be addressed through amendment, the court cannot say as a matter of law that amendment would be futile. There are no other factors weighing against amendment of the pleadings, such as undue delay or prejudice. Therefore, Plaintiffs are granted leave to amend their complaint to address the deficiencies identified above.
V. CONCLUSION
For the reasons stated above, Mabray‘s motion to strike under
IT IS SO ORDERED.
Dated: August 18, 2020
Donna M. Ryu
United States Magistrate Judge