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.

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

  1. 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,

    Ah. Do we know whether Twitter followings have been recognized by the courts as a viable standard for proving this point in defamation cases?

    If not, I guess we may find out. Or perhaps not, if the court finds his case too flimsy to warrant analyzing whether he counts as a private or public individual for the purposes of defamation.

  2. Laura Resnick on February 24, 2019 at 2:21 pm said:

    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?

    (Other examples snipped)

    You forgot to mention that in item #15 he talked about the Covington Catholic Kerfuffle which–having happened long after his banning–had no role in his deciding to wear a body camera.

  3. I am amazed that Jon has the gall to continue lying about his kids being doxxed. He’s been taking too many lessons from the Trumpster!

    Jon’s lie is clearly established not only by that tweet about him mentioning his son’s medical condition on youtube (or wherever it was — I’m not going to go check right now). Jon himself gave that same information to news reporters several years ago, when he was running for a local political office.

    I mean, does Jon seriously think that the defense lawyers don’t know how to Google?

  4. It sure looks like JDA is more concerned about how he appears to his Twitter followers than about winning the case.

    I made a kind of snarky comment previously. In the interest of civility, I don’t see how JDA can be happy about how this is going. I feel sorry for him as a human being. If only he could interact with the rest of us as a human being, without a political agenda. When he has done that before, File 770 commenters have been supportive. I hope he figures out that making himself a political martyr is not an effective strategy for success in the science fiction community.

  5. Hey, it just occurred to me — Jon posted that lie about doxxing in a court document, which means that it’s a lie under oath, right? Which means perjury? Somebody set me straight if I’ve gotten the legal details confused here. Not that I think anyone considers Jon important enough to pursue perjury charges on, but it seems like a dumb move.

    And yes, he knows it’s a lie, because I’ve reminded him of that news article myself on at least two occasions in the recent past.

  6. I just looked at his blog to see if he has mentioned this–he hasn’t, but in the latest entry (dated Feb 22) he laments that the Republican party isn’t stepping up to help him.

  7. He just came out of his shell on Twitter a few hours ago. John Scalzi got his goat without actually naming him. And it looks like JDA thinks Victoria Strauss will quarrel with him.

  8. The story about Lake Tahoe seems off-topic but there is some method in the narrative. JDA’s story is that things not only changed for him in 2016 but in the overall environment and hence he had particular reason to fear violence at 2018 Worldcon. A response I saw (or possibly even wrote) to some of the claims that JDA had a legitimate reason to fear violence at Worldcon was that other notably rightwing authors had attended Worldcons recently without being assaulted (notably John C Wright and Lou Antonelli). JDA claiming that circumstances have changed is a counter-argument to that. [and no, I don’t think that’s quite the analysis that went into the narrative but that’s how it functions]

  9. Camestros, yes, I recognize that the thread that runs through his statements is “witness how put-upon I am because I Am A ‘Conservative’!”

    To which I would think the court’s reaction would be, that may be distressing for you, but it’s not relevant to this case.

    He’s not suing “liberals” for treating him unfairly or “the sf/f community” because he’s afraid they’ll do violence to him. He’s suing WorldCon, and they aren’t answering for anyone but their committee.

    If Kevin Roche had Tweeted, “I’ll punch that Nazi dirtbag JDA if he dares shows his face at WorldCon!” that might be relevant to his legal claims. Or if WorldCon had Tweeted, “Publishers! Editors! How can you possibly work with this fascist jerk? We urge you to shun him!” well, yes, that might interest the court. It would be very easy to understand why he’d write about it in his declaration.

    But the plaintiff whining about anonymous penis glitter, people who make general anti-Nazi remarks on Twitter, and strangers at Lake Tahoe who hate his MAGA hat? Not so much. He comes across as exceedingly silly. (Again.)

  10. So a stalker adds the people he has stalked in his court filing, even when he knows they have nothing to do with it. Stalkers gonna stalk, I suppose.

  11. Scalzi and Mamatas are not the only ones JDA is calling out on Twitter Looks like he liked my filk

    Seems like we’ve established his limit: 5 days is as long as he can keep the lid on. (Speculating on what the coping mechanisms might be can lead to some very interesting pictures; scissors and magazines, wire hangers, walls covered with pictures, string and magic marker arrows….)

    Other Note: Earlier, someone mentioned him not doing himself much good in the writing career department. That may be, but that’s not his game. Like Trump, he only plays to his “base” and/or those he’d like to have as his base. If he keeps all six of them hepped up, he’s had a victory.

  12. I should say, I’m not familiar with US legal workings, so I may have this all wrong.

    By mentioning all those irrelevant people in his declaration doesn’t JDA bring them in to the case so that Worldcon can use things they say/said as evidence too?

  13. Doire: By mentioning all those irrelevant people in his declaration doesn’t JDA bring them in to the case so that Worldcon can use things they say/said as evidence too?

    In a criminal case, yes. In this sort of civil case, I would imagine the main effect would be to really piss the judge off at having their time wasted and their intelligence insulted by all of the irrelevancies he’s dragged in. And that his attorney allowed him to do so is a huge indicator of his counsel’s incompetence.

    That Declaration from JDA is seriously a case study for Dunning-Kruger.

  14. IANAL (though I did enough law school to get me in trouble):

    What are the consequences of this case? If JDA loses all (which I believe likely), do the defendants get their legal fees?
    How likely would they be to collect? (little: gettinig a judgement is not the same as collecting)
    Will JDA be enjoined from doing a crowdfunder to pay for it, or does he get to use the whole thing to create another platform for engaging in the same behaviors?
    I think he’s getting his attorney pro bono, so, even in the worst case scenario (for him), he’ll pretty much just be able to walk away.
    And I don’t think there’s enough incentive/benefit to be had to warrant WSFS’s counter-suing.

  15. Pingback: Jon Del Arroz’s History of Trolling and Harassing

  16. @Emperoxx:

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

    Is it possible the attorney is operating on the idea that if enough mud is slung something will stick? If they’re pro bono (as suggested just above — I’ve lost track) do they think this will get them deeper-pocketed clients of similar bent? If they’re getting a fee, are they simply milking a dim client, like the “editorial” services I have read of (not recently) whose primary function seemed to be receiving a fee for praising whatever the client produced? None of these is best behavior, but from the little I’ve read there’s a wide gap between not-best behavior and behavior that will result in censure or worse.

    @Steve Davidson:

    Other Note: Earlier, someone mentioned him not doing himself much good in the writing career department. That may be, but that’s not his game. Like Trump, he only plays to his “base” and/or those he’d like to have as his base. If he keeps all six of them hepped up, he’s had a victory.

    In what sense? AFAICT he’s not independently wealthy; sooner or later he has to earn a living at something, and the statements I remember seeing here suggest he thinks that something is writing. Is he overestimating the number of people who will buy his work just because he’s put upon by the pinko commie libruls?

  17. I have no idea whether or not the case is being handled pro bono, but:

    1. the lawyer is also a true believer, and has published some science fiction in the right-wing magazines in JDA’s mileu.

    2. JDA’s father is very wealthy indeed.

  18. Come to think of it, the judge throwing out 4 of JDA’s 5 complaints does seem to put the question front-and-center of filing a motion for the court to order JDA to pay at least a portion of WorldCon’s legal fees. The court has ruled that some of his complaints are not even A Thing under the law. WorldCon had to pay their own attorney to file motions about that because JDA’s attorney didn’t bother to… to what? To do the research? To learn the law? To tell his client that “political affiliation” isn’t a protected status under any anti-discrimination laws? Didn’t realize that a formal statement that a banned person would be removed if he entered the banned space does not constitute a threat of violence?

    WorldCon had to pay to refute baseless legal claims. If I had to pay for that, I’d sure want my money back. Maybe they do, too.

    If there’s a possibility he’d be able to pay (?), and if he could be charged with contempt by the court if he doesn’t pay, then it might be worthwhile for his victims (the WorldCon committee) to pursue this.

  19. A friend who has worked for many years for federal courts has told me more than once that it is astounding just how many attorneys are really, really bad at lawyering, don’t know the law, and write terrible briefs.

  20. @Adam Rakunas:

    So, what’s next?

    According to the court calendar, currently the next scheduled item is a case management conference in front of Judge Pierce on Tuesday, April 16th. This offers another chance at ADR (alternative dispute resolution) or settling the case, or otherwise to schedule when and for how long the trial will run. Nothing stops either side from trying more motions, AFAIK, although my understanding is that motions to force the other side to comply with discovery (if the other side is being uncooperative) must be filed at least 30 days before trial.

    To my knowledge, the court is for now glad to hear any new motion (i.e., not arguing the same thing again), but let’s talk about one in particular:

    Defence could go for a summary judgment motion, which can be thought of as a ‘let’s cut to the chase’ motion. In it, your side sets out in writing a detailed argument for the judge making a decision without needing to go through trial, if your side believes that the facts and the law are clear enough to give you an obvious victory based just on the pre-trial filings. To prevail, you have to prove to the judge that no factual question still needs settling at trial, and that you are entitled to judgment on your behalf as a matter of law.

    So, imagine a hypothetical case where defendant made a statement about racist and bullying behaviour from plaintiff, who claims in a civil suit that this constitutes defamation, and has entered the allegedly defamatory statement into evidence already. Defendant might go for summary judgement stating that the statement was clearly legally privileged opinion. Defendant might further argue that plaintiff is a public figure (someone who voluntarily entered the public eye on a particular public controversy, or who had achieved widespread notoriety even if he/she hadn’t voluntarily sought it), and hadn’t bothered to prove the statement to be either knowingly false or made in reckless disregard of the truth (as required of public figures ever since the NYT v. Sullivan case), and so had no defamation case to begin with.

    @Laura Resnick and Steve Davidson: Certainly, each side will be seeking to have the other side ordered to pay all legal costs. Failure to do if ordered indeed gets the losing party in (more) trouble with the court.

    IANAL, but I’m guesstimating that although the four dismissed civil rights claims, and not-yet-dismissed defamation one strike me as pretty wacky, they’re not wacky enough to successfully invoke sanctions. I’m mostly familiar with this concept in Federal court (partly because as a preteen I got to observe the spectacle of Mom beating up a Fortune 50 corporation in Federal District Court over negligently killing my father, incidentally making me quite interested in law thereafter), where Federal Rule of Civil Procedure 11 can be invoked to ask the court to seriously punish the opposing side and opposition’s attorneys for making pleadings for an improper purpose (such as to harass or to cause unnecessary delay or needless increase in the cost of litigation) or that contain frivolous arguments or arguments that have no evidentiary support. State courts have similar rules that can be wielded against abuse of legal process — but my sense is that the current farrago wouldn’t fall on the ‘totally crazy and without merit’ side but rather on the ‘nice try but absolutely no’ one.

    But I could be wrong, and, hey, maybe asking for court-ordered sanctions could work and should be tried, too.

  21. Pingback: Top 10 Posts for February 2019 | File 770

  22. JDA also spent time glomimg onto Greg Benford and his incident at a con last year in which Benford called a woman ‘honey’ and she didn’t like that, so Benford was (briefly) kicked out. He victim blamed the woman, and one of his readers/followers called the woman a dreg or some other insult (it was at the Bleeding Fool website.)

    This guy and his friends want to exercise their free speech rights, but then don’t want to suffer the consequences of uttering said speech; typical for most neocons.

  23. Lefty Throckmorton on March 6, 2019 at 6:24 am said:

    in which Benford called a woman ‘honey’ and she didn’t like that, so Benford was (briefly) kicked out. He victim blamed the woman, and one of his readers/followers called the woman a dreg or some other insult (it was at the Bleeding Fool website.)

    Your description of that has all of the accuracy of a Puppy post.

  24. @Pixie Ann: a lot of procedural housekeeping stuff. JDA paid a deposit for a jury trial and made a motion to dismiss most of the defendants. If anything else happens, I’ll upload to Scribd.

  25. Looks like he filed a request for dismissal against “David W. Gallaher David W. Clark Lise Detusch Harrigan Kevin Standlee Sandra Childress Bruce Farr 2018 SMOF Con Committee Cheryl Morgan Kevin Roche 2018 Worldcon (Worldcon 76) Cindy Scott Randy Smith New Zealand 2020 Worldcon Agent Committee Andy Trembley Jennifer “Radar” Wylie CostumeCon 2021 Organizing Committee Lori Buschhaum Susie Rodriguez “.

    It’s without prejudice, which means plaintiff is trying to reserve the right to bring all these defendants back in (as if). Congrats on your escape, personally-named defendants! The only defendant left is San Francisco Science Fiction Conventions, Inc. (“SFSFC”) aka Worldcon76.

  26. Charon Dunn: Looks like he filed a request for dismissal against …[list of defendants]… without prejudice, which means plaintiff is trying to reserve the right to bring all these defendants back in.

    I would have thought that all of these defendants were already dismissed from the case, with prejudice, because he failed to serve any of them by the deadline.

  27. @JJ – even if you’re named and not served, you’re still in the lawsuit until a dismissal is entered. Dismissal without prejudice is relatively uncommon and theoretically leaves the door open so that he can re-name and serve them if discovery yields any evidence … assuming the judge permits this; defense would definitely oppose it and may bring up arguments about limited liability for people sued in their capacity with a nonprofit. If I were a gambler I’d bet large sums that a judge would not permit this.

    IANAL so I’ll stop now, with the comment that I’ve personally filed hundreds of dismissals over several years of assisting trial counsel in various capacities, and maybe five of those were without prejudice.

  28. @Pixie Louise — once a trial date is set it is supposed to appear on the first page of any file documents (also known as “pleadings”) the lawyers submit to the court. I’m looking at the Santa Clara Superior Court website re docket number 18CV334547, but I’m not reading the actual pleadings and therefore don’t know if a date has been set. Usually trial dates are set far in advance, perhaps a year, and parties can do a motion for trial continuance if they need more time. Sometimes trials are continued on the court’s motion if there are scheduling or courtroom availability issues. Once a trial date is set, it triggers a series of deadlines for activities like conducting discovery and filing motions for summary judgment. Until that happens things are more open-ended.

  29. Pingback: Del Arroz vs. Worldcon 76 Update | File 770

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