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.