Court Rules Against Del Arroz on Four Issues in Lawsuit Against Worldcon 76, Allows Litigation to Continue on a Fifth

In today’s hearing on Jonathan Del Arroz v. S.F. Science Fiction Conventions, Inc., Santa Clara County Superior Court Judge Mark H. Pierce issued a tentative ruling tossing four out of the five causes of action in Del Arroz’s lawsuit against Worldcon 76’s parent corporation. A fifth complaint, defamation, remains before the court.

Del Arroz sued SFSFC last April after the Worldcon 76 committee announced he would not be allowed to attend the convention (“Del Arroz Files Suit Against Worldcon 76”; “We have taken this step because he has made it clear that he fully intends to break our code of conduct….”)

The five causes of action asserted in Del Arroz’s complaint were: (1) Violation of California Civ. Code §51 (Unruh Act, claiming discrimination based on “political affiliation and political beliefs”); (2) Violation of Civ. Code §51.5 (also a law against various forms of discrimination); (3) Violation of Civ. Code §51.7, the Bane Civil Rights Act, a law which protects against “violence, or intimidation by threat of violence” because of a political affiliation (or other arbitrary discrimination); (4) Violation of Civ. Code §52.1 (the Ralph Civil Rights Act); and (5) Defamation.

SFSFC’s attorney Ann G. Nguyen filed demurrer motions against the first four causes on October 11. A ‘demurrer’ motion is one objecting to a pleading by the opposite side, claiming opposing counsel’s claimed facts weren’t sufficient to support a cause of action. JDA’s attorney Peter Sean Bradley filed opposition responses with the court earlier this month. (The attorneys previously shared their positions in correspondence.) Nguyen also filed an Anti-SLAPP motion against the fifth cause of action.

The court sustained SFSFC’s four demurrers, but denied the Anti-SLAPP motion.

The court ruled that in the first two causes of action Del Arroz had claimed protections that are not part of the law. About the Unruh Act it said —  

Plaintiff has failed to identify any published California decision expressly stating that “political affiliation” is a protected classification for purposes of the Unruh Act and the Court is unaware of any.

…“Political affiliation” is simply not a personal characteristic protected under the Unruh Act.

And about Section 51.5 it said –

The claim fails as a matter of law because, as explained above, “political affiliation” is not a “characteristic listed or defined in subdivision (b) or (e) of Section 51.”

The court ruled against JDA’s third cause of action because there was no threat of violence, the sole support for which was the committee’s email stating that “If you are found on the premises of the convention center or any of the official convention hotels you will be removed.”

The Court concludes that a reasonable person would not have perceived the Jan. 2, 2018 email from Lori Buschbaum as a threat of violence. Leave to amend is DENIED as the defect cannot be cured without contradicting the existing factual allegations that the sole basis for the claim is the January 2, 2018 email from Lori Buschbaum.

Likewise, the court concluded the fourth cause failed to show any violation of the Ralph Civil Rights Act —

Under no circumstances could this be objectively construed as a threat of violence against a specific person (Plaintiff) made by a person (Lori Buschbaum) with the apparent ability to carry out such a threat.

SFSFC’s Anti-SLAPP motion to strike the fifth cause of action, defamation, was denied by the court. SLAPP refers to a “strategic lawsuit against public participation,” a suit intended to intimidate and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition. California law counters SLAPPs by allowing a defendant to make a special motion to strike a complaint when it arises from conduct that falls within the rights of petition or free speech.

To receive protection under the anti-SLAPP statute, SFSFC had to show that its statement why Del Arroz wouldn’t be allowed to attend the Worldcon was “made in a place open to the public or a public forum in connection with an issue of public interest.” If they satisfied those conditions, then JDA would have to prove there is a probability he would succeed with his defamation claim. However, the court decided that while SFSFC made its statement in a public forum, this was not “an issue of public interest.”

Defendant’s special motion to strike the fifth cause of action for defamation is DENIED for failure to meet the initial burden to establish that Plaintiff’s defamation claim is based on its protected activity. Defendant’s publicly accessible web site and social media sites do constitute “public forums” for purposes of the anti-SLAPP statute.

However Defendant has failed to establish that its statement that Plaintiff had been barred from the convention because of “racist” and “bullying” behavior (and this is the only reasonable interpretation of Defendant’s statement) concerned a matter of public interest.

…Defendant’s evidence (in particular the declarations of Kevin Roche and Charles Serface) fails to establish that its statement regarding Plaintiff was made in the context of an “ongoing controversy, dispute or discussion,” of interest to a definable, measurable portion of the public. At best Defendant’s evidence shows that Plaintiff engaged in online arguments with a handful of identified persons in which he used disparaging insults (but notably not any clearly racist ones). This evidence does not support Defendant’s “public controversy” argument with any actual evidence that any sizable portion of Defendant’s claimed membership of 7,812 persons (let alone the “science fiction community as a whole,” which Defendant fails to even define much less explain how its awareness and engagement could be or were measured) was even aware of Plaintiff’s identity, much less his disagreements with a handful of identified persons or with Defendant as an organization and was engaged in a discussion about the subject before Defendant’s January 4, 2018 announcement that Plaintiff had been banned from attending the convention because “racist and bullying behavior is not acceptable,” clearly referring to some (unidentified) behavior of Plaintiff.

Because the Court finds that Defendant has not met its burden on the first step of the analysis, it is not necessary for the Court to address the second step.

The tentative ruling will dispose of the first four causes of action unless Del Arroz appeals, and the case will continue with just the defamation claim.

142 thoughts on “Court Rules Against Del Arroz on Four Issues in Lawsuit Against Worldcon 76, Allows Litigation to Continue on a Fifth

  1. @Nicholas —

    To be fair, both authors—of Lusitanian descent and extraction respectively—have claimed, rather laughably, to be Hispanic at the height of Puppymania. Hoyt even called herself “brown.” This was only for propaganda purposes. Both have just as conveniently forgotten saying any such thing.

    Actually, both Correia and Hoyt have rejected the Hispanic label.

    For one example, Correia has said: “If I hated white men then A. I probably shouldn’t choose to live in rural Utah. and B. probably shouldn’t be one.”

    And Hoyt has said, amongst other things, that usually the people who call her Latin are people who have a grudge against her: “And btw, the reason I stopped resisting identifying as Latin is because other people are making that identification for me, usually people who have a grudge”

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  3. I realize that here on File770 it a cultural norm to ignore links and even the sentences people write in order to “correct” the facts being stated, but as I said both Corriea and Hoyt have claimed to be Latino or Hispanic when it suited them, and have denied it when it does not. This remains true even when you only point to moments when they’ve used the latter tactic.

    Here is Hoyt, on whether or not she and Correia are Latin: We (and the group consisted of a Latin male, a Latin female (me)…

    Here is Correia, on himself: Officially, according to the government, I am a Latino too, because the island my grandparents came from was 500 miles off the coast of the Iberian Peninsula, which speaks a language that vaguely comes from Latin, except we’re browner than France, so the SBA says to check the Hispanic box. My last name is Correia.

    (Note: the federal government, outside of the SBA and DoT, does not consider Portuguese immigrants and people of Portuguese descent Latino. These two departments do for the sake of aid for minority-owned businesses.)

    It’s no surprise that you can find comments where they say they are not Latino/Hispanic because, as I said, they only claim it when rhetorically convenient.

    None of this is speculation about their race or origin, this is just a description of their own varied claims.

  4. For what it’s worth, Correia’s statement as quoted by Nicholas Mamatas reads to me entirely consistently with a self-identification as white.

    For one thing, in the above statement he’s saying what the government considers him, not what he considers himself.

    For another, the US census categories treats Hispanic as independent from white, black, etc. Hispanics normally check two boxes, the Hispanic one and one of the racial ones, usually though not always white.

  5. Nobody on this thread ever said that Correia called himself non-white.

    And actually, he said he was *officially* Latino…which is, as already pointed out, untrue. The federal government does not consider Portuguese to be Latino.

  6. @Mike Glyer: If it’s better as a work of fiction, shouldn’t the title be “The Unpleasant Declaration of Jonathan Del Arroz”?

  7. @Mike Glyer – I did not see the Declaration in the downloads. Is it available elsewhere?

  8. @Nicholas —

    Apologies for ignoring your original link. We finally had the memorial service for my mom today, and I was up most of the night (got 3 hours’ sleep) getting ready for it. I just got back to my Dad’s house from that a few minutes ago, and as soon as I catch up on email and stuff I’m heading off for a nice long nap before I drive home!

    as I said both Corriea and Hoyt have claimed to be Latino or Hispanic when it suited them, and have denied it when it does not.

    My original Hoyt quote was from 2011, explaining that she only started identifying as Latino because she got tired of correcting all the other people who kept calling her that. It looks like your quote was from about 2017, I think, so it appears that she has indeed completely given up on objecting to it.

    Here is Correia, on himself: Officially, according to the government, I am a Latino too

    Note that he is only making a claim about what the government calls him, not about what he calls himself. (What DB said.)

    And actually, as you mentioned in your post, it is not true that the government as a whole calls people of Portuguese descent Latino or Hispanic, although some portions of it may:

    “The federal government of the United States has mandated that “in data collection and presentation, federal agencies are required to use a minimum of two ethnicities: “Hispanic or Latino” and “Not Hispanic or Latino”. The Census Bureau defines “Hispanic or Latino” as “a person of Cuban, Mexican, Puerto Rican, South or Central American or other Spanish culture or origin regardless of race.”

    https://en.wikipedia.org/wiki/Race_and_ethnicity_in_the_United_States_Census

    And further:

    “Hispanic Americans and Latino Americans (Spanish: estadounidenses hispanos or americanos hispanos, pronounced [is?panos]) are people in the United States who are descendants of people from countries of Latin America and Spain.[….]More generally, it includes all persons in the United States who self-identify as Hispanic or Latino, whether of full or partial ancestry. For the 2010 United States Census, people counted as “Hispanic” or “Latino” were those who identified as one of the specific Hispanic or Latino categories listed on the census questionnaire (“Mexican”, “Puerto Rican” or “Cuban”) as well as those who indicated that they were “other Spanish, Hispanic, or Latino.” The national origins classified as Hispanic or Latino by the United States Census Bureau are the following: Argentine, Cuban, Colombian, Puerto Rican, Dominican, Mexican, Costa Rican, Guatemalan, Honduran, Nicaraguan, Panamanian, Salvadoran, Bolivian, Spanish American, Chilean, Ecuadorian, Paraguayan, Peruvian, Uruguayan, and Venezuelan. Other U.S. government agencies have slightly different definitions of the term, including Brazilians and other Portuguese-speaking groups. The Census Bureau uses the terms Hispanic and Latino interchangeably.”

    https://en.wikipedia.org/wiki/Hispanic_and_Latino_Americans

    Yes, I know, wikipedia — but I’m too tired to track down the primary sources right now. I’m sure they’re provided on those pages if anyone’s interested.

    Nobody on this thread ever said that Correia called himself non-white.

    In the post I originally quoted, in which he called himself white, he was reacting to someone who was trolling him for supposedly being racist against white people because he was Hispanic. So at that time, at least, Correia appeared to be conflating “Hispanic” with “non-white”.

    And now I’m off to bed!

  9. If you wish to see a many other examples of Correia referring to himself as Hispanic or Latino, just google his surname and the phrase “wise Latino.”

    And, as has been pointed out, he isn’t just saying that the government says he’s Latino—he’s saying that he is Latino and points to the government as proof when in fact almost all of the government says no such thing. It’s not “Oh no, the government says I’m Latino!” It’s “Oh no, I’m making something up in order to claim to be Latino!”

    I have no idea why you decided to paste all the other material in, as it has been covered extensively. I presume this is just more 770 Syndrome.

  10. Nicholas Mamatas: I have no idea why you decided to paste all the other material in, as it has been covered extensively. I presume this is just more 770 Syndrome.

    Has somebody been spreading misinformation that File 770 Unlimited shares revenue with commenters in proportion to how many words they can make you read?

  11. Re: JDL upload

    That was cringingly painful to read. Half of that didn’t make the least lick of sense, and certainly doesn’t support what Jon’s trying to assert. It’s also cherry-picked to an extreme.

    @Nicholas Mamatas, you’re “Exhibit K,” or something.

  12. Mike Glyer: Has somebody been spreading misinformation that File 770 Unlimited shares revenue

    File 770… revenue…

    *snort*

    I’m still waiting for my royalty check from 2016. 😀

  13. JJ: I’m still waiting for my royalty check from 2016.

    Here ya go — ✔ ___________

    (And it’s a blank check — you can fill in your own royal title.)

  14. Mike Glyer: I don’t know if it’s available elsewhere so I’ve uploaded it here

    Wow, that statement is just full of self-owns. I can’t decide whether JDA is really that stupid, or whether he knows his case is a lost cause, and so went for as much camp theatrics as possible.

  15. Revenue sharing, hmmmm? I’ve never pretended to be good with math, but I suspect a percentage of zero is still zero.

    I can’t even with that declaration. I tried. I applaud those who waded through the weeds, but it made me cringe in embarrassment for JDA.

  16. Bonnie: Did you notice there’s a paragraph numbered 10 with no content? Is that a second fifth chapter reference?

  17. Mike Glyer: Did you notice there’s a paragraph numbered 10 with no content?

    I noticed that, and it made me laugh really hard. Because the rest of it is so self-incriminating, I can’t imagine what was worse enough that JDA’s attorney thought it should be elided.

  18. Mike Glyer: Here ya go — ✔ ___________
    (And it’s a blank check — you can fill in your own royal title.)

    Cashed! 😀

  19. Cheryl S.: Are you henceforth to be referred to as Your Majesty?

    That will do for today. As of tomorrow, it’s “Your Supreme Awesome Royal Majesty Highnessness”.

  20. @Contrarius: does the document you cite allow the conclusion that Hoyt would be Latina if her ancestry was routed through Brazil rather than arriving directly from Portugal? Or is Brazil not part of South America for the purposes of this labeling? I wonder what position either Brazilians or Portuguese would take….

  21. Of course, del Arroz cannot help but lie. I’ve never called anyone a Nazi for merely supporting Trump. The tweets he screencap refer to a Twitter account that was suspended for searching out the word “Hitler” and then making explicitly pro-Hitler arguments. The interview I allude to in the other tweet was a softpedal New York Times profile of one of the founders of the explicitly National Socialist Traditionalist Worker Party.

    I’m just on del Arroz’s list of “bad people” and he did a search of my tweets for the word “Nazi” and then just pasted them in, because he is that terrible at everything he attempts.

  22. Nicholas Mamatas on February 23, 2019 at 6:42 pm said:

    I’m just on del Arroz’s list of “bad people” and he did a search of my tweets for the word “Nazi” and then just pasted them in, because he is that terrible at everything he attempts.

    It was indeed a tortuous way of working you into the mix somehow. The Tweets have only a weak connection to his argument. I suspect he wanted examples of you being mean to him but was talked out of it in case they made the judge laugh.

  23. I strongly suspect that statement and the exhibits as well as the counter exhibits will either make the judge laugh or throw up his hands in despair or both.

  24. I know this isn’t the case but I imagine all of this stuff being read out in a 1930s style English courtroom with a bewigged judge who is still confused that its not the 19th century anymore.
    Barrister: M’lud it is the plaintiff’s contention that he is a sh!tposter.
    Judge: A shirtposter? I thought he was a writer of penny dreadfuls and futuristic romances? Onto what does he post shirts? Does he glue them onto the walls of abandoned buildings?
    Barrister: He posts onto ‘twitter’ m’lud. A form of ‘social media’.
    Clerk of the Court (interrupting): A form of electric telegram m’lud.
    Judge: I see. An electric societal medium onto which the plaintiff announces his shirts.
    Barrister: Indeed m’lud and also his memes.

  25. They’re going to have to do one of those “timeline” things with “twenty seven eight-by-ten colour glossy pictures with circles and arrows and a paragraph on the back of each one”

    This song is called JDA’s Twitterverse and its about JDA, and the twitterverse, but JDA’s Twitterverse is not the name of the twitterverse, that’s just the name of the song, and that’s why I called the song JDA’s Twitterverse

    You don’t want anything you’d get at JDA’s Twitterverse
    Yoo don’t want anything you’d get at JDA’s Twitterverse
    log right in and click the post
    read what you want to avoid the most
    You don’t want anything you’d get at JDA’s Twitterverse

    Now it all started about two Worldcons ago….

  26. File 770 Unlimited shares revenue with commenters in proportion to how many words they can make you read?

    Mike! Where’s my check!

  27. @Steve Davidson: here, have an Internet — it’s only a little stained around the edges….

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  29. Judge, I was already arranging the guards and the bodycams to protect me from the violent leftist mob that was going to attack me, but then they wouldn’t let me go and I really wanted to!

  30. ….so then I filmed myself trying to get in anyway. And failed to get any violent reaction, but got politely turned away again. Can you believe it?

  31. I don’t read court filings as a hobby, and I’m not a lawyer, so I’m wondering, how typical is JDA’s Declarations? It seems…not very on point? Discursive, narrative, but with very little attempt to tie the story to the points of law that he is pursuing. Is this a usual thing? Anybody with legal experience got an opinion on this? I mean, if this were a pro se filing, it would make sense to me, but he’s got an actual attorney.

  32. Did you all not get far enough to see there’s also a blank 29 in addition to 10? I know nothing about these things, but I wonder if something was redacted and the remaining paragraphs weren’t renumbered.

    In addition to spelling Sarah and Larry’s names wrong, he also misspelled his former editor’s name (“Brezok” instead of Brozek).

  33. Laura: These are the versions filed with the court, so the paragraphs with no content have not been redacted. Whether there originally was wording that was edited out by Del Arroz or his attorney, who knows? Or maybe they just aren’t very good at formatting legal documents.

  34. In my experienced opinion the null paragraphs appear to be evidence somebody failed at outline numbering (a common mishap among drafters of declarations, particularly given that the text looks like a verbatim cut-and-paste from the client as opposed to verbiage drafted by a person who works in a law office).
    People who are very good at formatting legal documents don’t work cheap.
    Just saying.
    *glances at EDD website again*
    *resumes trying to win Big Love Rocket holiday mount in World of Warcraft*

  35. @Lydy – typically declarations are dry recitations of facts establishing the necessary elements to bring the motion. For instance, if you’re doing a motion to make someone provide better answers to questions, you must establish that first you asked them some questions, and then they provided inadequate answers, and then you asked them nicely to elaborate, and they said no.

    “On [date] I received a letter, a copy of which is attached as exhibit A.”

    “I am the owner of the 1932 Dusenberg involved in the accident described in plaintiff’s complaint.”

    They are frequently used to bring evidence to the attention of the court and opposing counsel, like:

    “In his deposition, defendant said, ‘Yeah, I stole the diamonds, so what.’ (See excerpt from deposition attached as Exhibit C.)”

    They do not normally contain editorializing, opinions and creative license. Judges and their clerks hate it when lawyers try to be cute by forcing everybody’s eyeballs to waste time tracking nonessential text.

  36. Mike: That’s what I meant. Removed before filing. Like the lawyer said, “Um, no.” But maybe he just hit ‘enter’ an extra time in two random places.

  37. Like others, I am bemused by JDA’s written statement for the court. As already noted by others here, much of his account appears to be fiction. Additionally, much of it seems bizarrely digressive and irrelevant to his lawsuit.

    Ex. His written statement talks about something that happened to him at Lake Tahoe, a story which has nothing to do with WorldCon or sf/f or this lawsuit. Why does he think the court will take it into account when deciding whether WorldCon owes him damages?

    Ex. His written statement complains about the anonymous prank-package he received of penis glitter. He doesn’t tie this to WorldCon or pretend it’s their responsibility, so why does he imagine this is relevant to his lawsuit against WorldCon?

    Ex. He bitches about various people in sf/f who also have nothing to do with WorldCon or this lawsuit. This list includes Cat Rambo, whom his statement does not mention he harassed online for months. (Indeed, the first time I ever heard of JDA was when, upon learning what Cat was dealing with, I was one of numerous people who urged her to file a police complaint against him.)

    Ex. His statement talks about the size of his Twitter following and compares it to the size of Scalzi’s Twitter following. How is relevant to his lawsuit claiming WorldCon discriminated against him, threatened him, and defamed him?

    Ex. His statement complains about editors he fell out with, including one whose politics he doesn’t like. This is relevant to his lawsuit against WorldCon because…???

    And so on and so forth.

    And his attachments/exhibits are equally….odd.

    Ex. He provides a screenshot that shows the sizes of his and Scalzi’s respective Twitter followings. Again, what does this have to do with his various claims against WorldCon?

    Ex. He provides a screenshot of some posts by an editor he doesn’t like, none of which have anything at all to do with JDA or with WorldCon. Why does he imagine the court will find this relevant to his claims against WorldCon?

    Ex. He provides a screenshot of Nick Mamatas making comments that also have nothing whatsoever to do with JDA or with WorldCon.

    Ex. While claiming in his statement that someone “doxxed” his son, he contradicts this with an attachment that’s a screenshot of the accused person responding to his accusation by saying, No, I just repeated information that YOU posted about your son on social media. So the anecdote in his statement (a) has nothing to do with WorldCon, and (b) the exhibit he provides to confirm his anecdote appears to refute it.

    Ex. Another attachment accuses CNN of racist coverage of music celebrity Kanye West. What does this have to do with JDA or WorldCon?

    The only attachments/exhibits (in a long list of them) that seem to belong there in any rational sense (so to speak) are a few public statements by WorldCon, the party he’s actually suing. And with most of his case already having been thrown out, there’s only one item in those exhibits that seems at all relevant now: the public statement from WorldCon saying that banning him is a step in eliminating the racist and bullying behavior that their code of conduct prohibits.

    That one public statement by WorldCon now seems to be the entire basis of this lawsuit. And according to Nolo.com’s explanation of defamation cases, he doesn’t just have to prove (if he can) that WorldCon made a false statement about him; he also has to prove the statement materially injured him, i.e. didn’t just offend him or hurt his feelings, but caused demonstrable real-world damage to him that he can prove to the court.

    If he wins, then I’m suing Del Rey books, which once claimed I married my own father. (It was a mistake made by some genius in marketing who rewrote my father’s book-jacket bio to claim I am his wife.)

  38. Laura Resnick: His statement talks about the size of his Twitter following and compares it to the size of Scalzi’s Twitter following. How is relevant to his lawsuit claiming WorldCon discriminated against him, threatened him, and defamed him?

    While I agree with your observation that almost all of JDA’s statement is irrelevant to the lawsuit (as well as extremely self-incriminating), I suspect that the intent of the comparisons of his social media following to those of authors who are genuinely “leading voices in science fiction” is to show that he is not a “public figure” as defined by law, since the burden of proof for a defamation charge is higher for people who are considered public figures.

    The fact that this statement was actually admitted into evidence is just more indication that JDA’s attorney is severely lacking in competence.

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