Positive
As of: January 6, 2018 12:53 AM Z
Cross v. Facebook, Inc.
Court of Appeal of California, First Appellate District, Division Two
August 9, 2017, Opinion Filed
A148623, A149140
Reporter
14 Cal. App. 5th 190 *; 222 Cal. Rptr. 3d 250 **; 2017 Cal. App. LEXIS 691 ***; 45 Media L. Rep. 2552
JASON CROSS et al., Plaintiffs and Appellants, v.
FACEBOOK, INC., Defendant and Appellant.
Subsequent History: Review denied by, Request
granted Cross v. Facebook, Inc., 2017 Cal. LEXIS
8323 (Cal., Oct. 25, 2017)
Review denied by, Request granted Cross v.
Facebook, Inc., 2017 Cal. LEXIS 8305 (Cal., Oct.
25, 2017)
Prior History: [***1] Superior Court of San
Mateo County, No. CIV537384, Donald J. Ayoob,
Judge.
Core Terms
Knight, advertising, pages, cause of action, trial
court, anti-SLAPP, likeness, users, provider, third
party, unauthorized, publisher, right of publicity,
plaintiffs', terms, public interest, services,
prevailing, interactive, alleges, Mikel, community
standard, probability, adjacent, threats, computer
service, term of service, derivative, unrelated,
disable
Case Summary
Overview
HOLDINGS: [1]-Plaintiff's complaint against
defendant, a social networking service, for its
refusal to disable a page, which plaintiff claimed
incited violence and generated death threats against
him, involved an issue of public interest under the
anti-SLAPP statute, Code Civ. Proc., § 425.16; [2]-
Plaintiff failed to demonstrate that the complaint
was both legally sufficient and supported by a
sufficient prima facie showing of facts to sustain a
favorable judgment; [3]-The evidence demonstrated
that defendant had not used plaintiff's identity, and
any right of publicity claims failed for this reason
alone; [4]-Plaintiff did not even allege - let alone
show - that any advertiser used his name or
likeness; at most, plaintiff showed that defendant
allowed unrelated third-party advertisements to run
adjacent to pages containing users' comments about
plaintiff and his business practices.
Outcome
Affirmed in part and reversed in part; remanded
with instructions.
LexisNexis® Headnotes
Civil Procedure > ... > Responses > Defenses,
Demurrers & Objections > Motions to Strike
Constitutional Law > Bill of
Rights > Fundamental Freedoms > Freedom to
Petition
Constitutional Law > ... > Fundamental
Freedoms > Freedom of Speech > Strategic
Lawsuits Against Public Participation
HN1[ ] Defenses, Demurrers & Objections,
Motions to Strike

A two-step process is used for determining whether
an action is a SLAPP. First, the court decides
whether the defendant has made a threshold
showing that the challenged cause of action is one
arising from protected activity, that is, by
demonstrating that the facts underlying the
plaintiff's complaint fit one of the categories spelled
out in Code Civ. Proc., § 425.16, subd. (e). If the
court finds that such a showing has been made, it
must then determine the second step, whether the
plaintiff has demonstrated a probability of
prevailing on the claim.
Civil Procedure > ... > Responses > Defenses,
Demurrers & Objections > Motions to Strike
Constitutional Law > Bill of
Rights > Fundamental Freedoms > Freedom to
Petition
Constitutional Law > ... > Fundamental
Freedoms > Freedom of Speech > Strategic
Lawsuits Against Public Participation
HN2[ ] Defenses, Demurrers & Objections,
Motions to Strike
The legislature enacted Code Civ. Proc., § 425.16,
to prevent and deter lawsuits (referred to as
SLAPP's) brought primarily to chill the valid
exercise of the constitutional rights of freedom of
speech and petition for the redress of grievances. §
425.16, subd. (a). Because these meritless lawsuits
seek to deplete the defendant's energy and drain his
or her resources, the legislature sought to prevent
SLAPPs by ending them early and without great
cost to the SLAPP target. Section 425.16 therefore
establishes a procedure where the trial court
evaluates the merits of the lawsuit using a
summary-judgment-like procedure at an early stage
of the litigation.
Civil Procedure > ... > Responses > Defenses,
Demurrers & Objections > Motions to Strike
Governments > Legislation > Interpretation
HN3[ ] Defenses, Demurrers & Objections,
Motions to Strike
Code Civ. Proc., § 425.16, subd. (a), expressly
mandates the section shall be construed broadly.
Civil Procedure > ... > Responses > Defenses,
Demurrers & Objections > Motions to Strike
HN4[ ] Defenses, Demurrers & Objections,
Motions to Strike
The question whether something is an issue of
public interest must be construed broadly. An issue
of public interest is any issue in which the public is
interested. A matter of public interest should be
something of concern to a substantial number of
people. There should be some degree of closeness
between the challenged statements and the asserted
public interest. The focus of the speaker's conduct
should be the public interest. Nevertheless, it may
encompass activity between private people. The
court looks for the principal thrust or gravamen of
the plaintiff's cause of action. The court does not
evaluate the first prong of the anti-SLAPP test
solely through the lens of a plaintiff's cause of
action. The critical consideration is what the cause
of action is based on.
Civil Procedure > ... > Responses > Defenses,
Demurrers & Objections > Motions to Strike
Constitutional Law > Bill of
Rights > Fundamental Freedoms > Freedom to
Petition
Constitutional Law > ... > Fundamental
Freedoms > Freedom of Speech > Strategic
Lawsuits Against Public Participation
HN5[ ] Defenses, Demurrers & Objections,
Motions to Strike
14 Cal. App. 5th 190, *190; 222 Cal. Rptr. 3d 250, **250; 2017 Cal. App. LEXIS 691, ***1

Where an action directly targets the way a content
provider chooses to deliver, present, or publish
news content on matters of public interest, that
action is based on conduct in furtherance of free
speech rights and must withstand scrutiny under
California's anti-SLAPP statute, Code Civ. Proc., §
425.16.
Civil Procedure > ... > Responses > Defenses,
Demurrers & Objections > Motions to Strike
Civil
Procedure > ... > Pleadings > Complaints > Req
uirements for Complaint
HN6[ ] Defenses, Demurrers & Objections,
Motions to Strike
The court decides the second step of the anti-
SLAPP analysis on consideration of the pleadings
and supporting and opposing affidavits stating the
facts upon which the liability or defense is based.
Code Civ. Proc., § 425.16, subd. (b). Looking at
those affidavits, the court does not weigh
credibility, nor does it evaluate the weight of the
evidence. Instead, the court accepts as true all
evidence favorable to the plaintiff and assesses the
defendant's evidence only to determine if it defeats
the plaintiff's submission as a matter of law. That is
the setting in which the court determines whether
the plaintiff has met the required showing, a
showing that is not high. The plaintiff needs to
show only a minimum level of legal sufficiency and
triability. The plaintiff needs to show only a case of
minimal merit. While the plaintiff's burden may not
be high, he or she must demonstrate that his or her
claim is legally sufficient. The plaintiff must show
that the claim is supported by a sufficient prima
facie showing, one made with competent and
admissible evidence. In sum, to defeat an anti-
SLAPP motion, the plaintiff must demonstrate that
the complaint is both legally sufficient and
supported by a sufficient prima facie showing of
facts to sustain a favorable judgment.
Communications Law > Federal
Acts > Telecommunications
Act > Communications Decency Act
HN7[ ] Telecommunications Act,
Communications Decency Act
In evaluating whether a claim treats a provider as a
publisher or speaker of user-generated content,
what matters is not the name of the cause of action;
instead, what matters is whether the cause of action
inherently requires the court to treat the defendant
as the publisher or speaker of content provided by
another. Courts must ask whether the duty that the
plaintiff alleges the defendant violated derives from
the defendant's status or conduct as a publisher or
speaker. If it does, 47 U.S.C. § 230(c)(1) of the
Communications Decency Act precludes liability.
Torts > ... > Invasion of
Privacy > Appropriation > Elements
HN8[ ] Appropriation, Elements
A cause of action for common law right of
publicity has four elements: (1) the defendant's use
of the plaintiff's identity; (2) the appropriation of
the plaintiff's name or likeness to the defendant's
advantage, commercially or otherwise; (3) lack of
consent; and (4) resulting injury.
Torts > ... > Invasion of
Privacy > Appropriation > Elements
HN9[ ] Appropriation, Elements
Civ. Code, § 3344, was intended to complement,
not supplant, common law claims for right of
publicity. To prove the statutory remedy, a plaintiff
must present evidence of all the elements of the
common law cause of action and must also prove a
knowing use by the defendant as well as a direct
connection between the alleged use and the
commercial purpose.
14 Cal. App. 5th 190, *190; 222 Cal. Rptr. 3d 250, **250; 2017 Cal. App. LEXIS 691, ***1

Civil Procedure > ... > Responses > Defenses,
Demurrers & Objections > Motions to Strike
HN10[ ] Defenses, Demurrers & Objections,
Motions to Strike
Plaintiffs cannot rely on their pleading, even if
verified, to demonstrate a probability of success on
the merits.
Torts > ... > Invasion of
Privacy > Appropriation > Elements
HN11[ ] Appropriation, Elements
Civ. Code, § 3344, subd. (a), explicitly provides for
possible liability on any person who knowingly
uses another's name, voice, signature, photograph,
or likeness, in any manner for purposes of
advertising without such person's prior consent.
The statute requires some "use" by the advertiser
aimed at obtaining a commercial advantage for the
advertiser.
Headnotes/Syllabus
Summary
[*190] CALIFORNIA OFFICIAL REPORTS
SUMMARY
Plaintiff, a country rap artist, sued defendant, a
social networking service, for its refusal to disable
a page, which plaintiff claimed incited violence and
generated death threats against plaintiff and his
promotion team. Plaintiff's complaint alleged six
causes of action: (1) breach of written contract; (2)
negligent misrepresentation; (3) negligent
interference with prospective economic relations;
(4) breach of Civ. Code, § 3344; (5) violation of
common law right of publicity; and (6) violation of
the unfair competition law (UCL). Defendant filed
a special motion to dismiss all six causes of action
pursuant to the anti-SLAPP statute (Code Civ.
Proc., § 425.16), arguing that they arose from
protected activity and that plaintiff could not show
a probability of prevailing on any of them. The trial
court held that the complaint was based on
protected activity, that plaintiff could not prevail on
the first three causes of action, and granted the anti-
SLAPP motion as to them. The trial court denied
the anti-SLAPP motion as to the three other causes
of action—claims alleging statutory and common
law claims for violation of plaintiff's right of
publicity, along with the UCL claim—concluding
that plaintiff had shown a probability of prevailing
on them. (Superior Court of San Mateo County,
No. CIV537384, Donald J. Ayoob, Judge.)
The Court of Appeal affirmed in part, reversed in
part, and remanded the matter with instructions to
the trial court to enter an order granting the anti-
SLAPP motion in its entirety. The court concluded
that plaintiff‘s complaint involved an issue of
public interest under the anti-SLAPP statute.
Plaintiff failed to demonstrate that the complaint
was both legally sufficient and supported by a
sufficient prima facie showing of facts to sustain a
favorable judgment. Plaintiff did not even allege—
let alone show—that any advertiser used his name
or likeness. Plaintiff thus could not establish that
anyone, let alone defendant, obtained an advantage
through use of his identity. The evidence plaintiff
submitted below demonstrated either that no
advertisements appeared alongside the pages at
issue, or that the advertisements that did appear
adjacent to the content posted by third parties made
no use of his name or likeness. At most, plaintiff
showed that defendant allowed unrelated third party
advertisements to run adjacent to pages containing
users’ [*191] comments about plaintiff and his
business practices. The appearance of
advertisements next to a third party's use of
plaintiff's identity was insufficient to demonstrate a
commercial use by defendant. (Opinion by
Richman, Acting P. J., with Stewart and Miller, JJ.,
concurring.)
Headnotes
14 Cal. App. 5th 190, *190; 222 Cal. Rptr. 3d 250, **250; 2017 Cal. App. LEXIS 691, ***1

CALIFORNIA OFFICIAL REPORTS
HEADNOTES
CA(1)[ ] (1)
Pleading § 93—Anti-SLAPP Motions—Protected
Activity—Probability of Prevailing.
A two-step process is used for determining whether
an action is a SLAPP. First, the court decides
whether the defendant has made a threshold
showing that the challenged cause of action is one
arising from protected activity, that is, by
demonstrating that the facts underlying the
plaintiff's complaint fit one of the categories spelled
out in Code Civ. Proc., § 425.16, subd. (e). If the
court finds that such a showing has been made, it
must then determine the second step, whether the
plaintiff has demonstrated a probability of
prevailing on the claim.
CA(2)[ ] (2)
Pleading § 93—Anti-SLAPP Motions—Protected
Activity—Right of Petition or Free Speech.
The Legislature enacted Code Civ. Proc., § 425.16,
to prevent and deter lawsuits (referred to as
SLAPP's) brought primarily to chill the valid
exercise of the constitutional rights of freedom of
speech and petition for the redress of grievances.
Because these meritless lawsuits seek to deplete the
defendant's energy and drain his or her resources,
the Legislature sought to prevent SLAPPs by
ending them early and without great cost to the
SLAPP target. Section 425.16 therefore establishes
a procedure where the trial court evaluates the
merits of the lawsuit using a summary-judgment-
like procedure at an early stage of the litigation.
CA(3)[ ] (3)
Pleading § 93—Anti-SLAPP Motions—
Construction of Statute.
Code Civ. Proc., § 425.16, subd. (a), expressly
mandates the section must be construed broadly.
CA(4)[ ] (4)
Pleading § 93—Anti-SLAPP Motions—Issue of
Public Interest.
The question whether something is an issue of
public interest must be construed broadly. An issue
of public interest is any issue in which the public is
interested. A matter of public interest should be
something of concern to a substantial number of
people. There should be some degree of closeness
between the challenged statements and the asserted
public interest. The focus of the speaker's conduct
should be the public interest. Nevertheless, it may
encompass activity between private people. The
court does not evaluate the first prong of the anti-
SLAPP test solely [*192] through the lens of a
plaintiff's cause of action. The critical consideration
is what the cause of action is based on.
CA(5)[ ] (5)
Pleading § 93—Anti-SLAPP Motions—Issue of
Public Interest—Right of Free Speech.
Where an action directly targets the way a content
provider chooses to deliver, present, or publish
news content on matters of public interest, that
action is based on conduct in furtherance of free
speech rights and must withstand scrutiny under the
anti-SLAPP statute (Code Civ. Proc., § 425.16).
CA(6)[ ] (6)
Pleading § 93—Anti-SLAPP Motions—Legal
Sufficiency—Minimal Merit.
The court decides the second step of the anti-
SLAPP analysis on consideration of the pleadings
and supporting and opposing affidavits stating the
facts upon which the liability or defense is based
(Code Civ. Proc., § 425.16, subd. (b)). Looking at
14 Cal. App. 5th 190, *191; 222 Cal. Rptr. 3d 250, **250; 2017 Cal. App. LEXIS 691, ***1

those affidavits, the court does not weigh
credibility, nor does it evaluate the weight of the
evidence. Instead, the court accepts as true all
evidence favorable to the plaintiff and assesses the
defendant's evidence only to determine if it defeats
the plaintiff's submission as a matter of law. That is
the setting in which the court determines whether
the plaintiff has met the required showing, a
showing that is not high. The plaintiff needs to
show only a minimum level of legal sufficiency and
triability. The plaintiff needs to show only a case of
minimal merit. While the plaintiff's burden may not
be high, he or she must demonstrate that his or her
claim is legally sufficient. The plaintiff must show
that the claim is supported by a sufficient prima
facie showing, one made with competent and
admissible evidence. In sum, to defeat an anti-
SLAPP motion, the plaintiff must demonstrate that
the complaint is both legally sufficient and
supported by a sufficient prima facie showing of
facts to sustain a favorable judgment.
CA(7)[ ] (7)
Pleading § 16—Cause of Action—Communications
Decency Act—Publisher or Speaker—Liability.
In evaluating whether a claim treats a provider as a
publisher or speaker of user-generated content,
what matters is not the name of the cause of action;
instead, what matters is whether the cause of action
inherently requires the court to treat the defendant
as the publisher or speaker of content provided by
another. Courts must ask whether the duty that the
plaintiff alleges the defendant violated derives from
the defendant's status or conduct as a publisher or
speaker. If it does, 47 U.S.C. § 230(c)(1), part of
the Communications Decency Act of 1996 (47
U.S.C. § 230), precludes liability.
CA(8)[ ] (8)
Privacy § 7—Actions—Common Law Right of
Publicity—Elements.
A cause of action for common law right of
publicity has four elements: [*193] (1) defendant's
use of plaintiff's identity; (2) the appropriation of
plaintiff's name or likeness to the defendant's
advantage, commercially or otherwise; (3) lack of
consent; and (4) resulting injury.
CA(9)[ ] (9)
Privacy § 7—Actions—Statutory Right of
Publicity—Elements.
Civ. Code, § 3344, was intended to complement,
not supplant, common law claims for right of
publicity. To prove the statutory remedy, a plaintiff
must present evidence of all the elements of the
common law cause of action and must also prove a
knowing use by the defendant as well as a direct
connection between the alleged use and the
commercial purpose.
CA(10)[ ] (10)
Pleading § 93—Anti-SLAPP Motions—Probability
of Prevailing.
Plaintiffs cannot rely on their pleading, even if
verified, to demonstrate a probability of success on
the merits.
CA(11)[ ] (11)
Privacy § 7—Actions—Right of Publicity—Social
Media—Use of Plaintiff's Identity.
In a case in which plaintiff sued defendant, a social
media service, for its refusal to remove a page,
which plaintiff claimed incited violence and
generated death threats against plaintiff and his
promotion team, plaintiff's right of publicity claim
failed because the evidence demonstrated that
defendant had not used plaintiff's identity.
[Cal. Forms of Pleading and Practice (2017) ch.
429, Privacy, § 429.35.]
14 Cal. App. 5th 190, *192; 222 Cal. Rptr. 3d 250, **250; 2017 Cal. App. LEXIS 691, ***1

CA(12)[ ] (12)
Privacy § 7—Actions—Statutory Right of
Publicity—Use—Commercial Advantage.
Civ. Code, § 3344, subd. (a), explicitly provides for
possible liability on any person who knowingly
uses another's name, voice, signature, photograph,
or likeness, in any manner for purposes of
advertising without such person's prior consent.
The statute requires some “use” by the advertiser
aimed at obtaining a commercial advantage for the
advertiser.
Counsel: Punzalan Law, Mark L. Punzalan; Cole
Law Group and Todd G. Cole for Plaintiffs and
Appellants.
Perkins Coie, Michael B. Garfinkel, Eric David
Miller, Julie Erin Schwartz, Lauren B. Cohen;
Durie Tangri and Sonal Naresh Mehta for
Defendant and Appellant.
Public Citizen Litigation Group, Paul Alan Levy;
Zeitgeist Law and Marcia Clare Hofmann for
Public Citizen, Inc., as Amicus Curiae on behalf of
Defendant and Appellant. [*194]
Electronic Frontier Foundation and Daniel Kelly
Nazer for The Electronic Frontier Foundation,
Engine, Eric Goldman, Github, Inc., Medium, The
Organization for Transformative Works, Rebecca
Tushnet, Snap, Inc., Wikimedia Foundation and
Yelp, Inc., as Amici Curiae on behalf of Defendant
and Appellant.
Wilmer Cutler Pickering Hale and Dorr, Ari
Holzblatt, Patrick J. Carome, Emily J. Barnet and
Mark Donnell Flanagan for Airbnb, Inc.,
IAC/InterActiveCorp., Google, Inc., LinkedIn
Corp., Reddit, Inc., and Twitter, Inc., as Amici
Curiae on behalf of Defendant and Appellant.
Randazza Legal Group, Marc John Randazza and
Alex James Shepard for Consumer Opinion LLC
and AVVO, Inc., [***2] as Amici Curiae on behalf
of Defendant and Appellant.
Judges: Opinion by Richman, Acting P. J., with
Stewart and Miller, JJ., concurring.
Opinion by: Richman, Acting P. J.
Opinion
[**254] RICHMAN, Acting P. J.—We here
address appeals filed by both sides from an order
on an anti-SLAPP motion, which order granted the
motion as to three causes of action and denied it as
to three others.
Plaintiffs are Jason Cross, also known as Mikel
Knight, a country rap artist, and two entities
affiliated with him. Defendant is Facebook, Inc.
(Facebook). The dispute arises out of a Facebook
page called “Families Against Mikel Knight,”
which page, plaintiffs claimed, incited violence and
generated death threats against Knight and his
team. Plaintiffs sought to have the page removed,
Facebook refused, and plaintiffs sued, in a
complaint that alleged six causes of action.
Facebook filed a special motion to dismiss all six
causes of action, arguing that they arose from
protected activity and that plaintiffs could not show
a probability of prevailing on any of them. The trial
court held that the complaint was based on
protected activity, that plaintiffs could not prevail
on the first three causes of action, and granted the
anti-SLAPP [***3] motion as to them. The trial
court denied the motion as to the three other causes
of action—claims alleging statutory and common
law claims for violation of Knight's right of
publicity, along with a derivative unfair
competition law (UCL) claim—concluding that
Knight had shown a probability of prevailing on
them.
Both sides appeal, plaintiffs arguing that all six
causes of action should proceed, Facebook that
none should. We agree with Facebook, and thus
affirm in part and reverse in part, with instructions
to the [**255] trial court to enter an order granting
the anti-SLAPP motion and striking the complaint.
14 Cal. App. 5th 190, *193; 222 Cal. Rptr. 3d 250, **250; 2017 Cal. App. LEXIS 691, ***1

[*195]
BACKGROUND
The Facts
Plaintiff Jason Cross, also known as Mikel Knight
(Knight), is, as described in his complaint, “an
American recording artist in the genre of Country
Rap/Urban Country. Knight's music is available on
streaming music services such as Spotify, and his
music videos are available on music video services
such as Vevo.” 1203 Entertainment, LLC (1203
Entertainment), is Knight's record label, which
itself has a marketing subsidiary, MDRST
Marketing/Promotions (MDRST) (when referred to
collectively, Knight, 1203 Entertainment, and
MDRST will be referred to as plaintiffs).
Facebook [***4] operates a social networking
service that enables some two billion users
worldwide to connect and share information that is
important to them with family, coworkers, and
friends. Use of the service is free, but users agree to
Facebook's terms of service when they sign up for a
Facebook account and each time they access or use
Facebook.
Knight's Facebook experience apparently
proceeded uneventfully for several years, until
2014, when two accidents happened within a week.
MDRST's marketing efforts included hiring of
independent contractors who would travel
throughout the country in vans that featured
Knight's name and logo, promoting his music and
merchandise. On June 9 and 16, 2014, two vans
were involved in separate accidents when the
drivers fell asleep at the wheel. The accidents had
tragic consequences, including two deaths and one
serious injury.
Shortly after the accidents, a publicly available
Facebook page called “Families Against Mikel
Knight” was created, apparently by a person (or
persons) related to the victims. As to plaintiffs'
version of what followed, their brief describes it
this way: “numerous commenters began posting
statements inciting violence and death threats
against [***5] Knight and members of his record
labels … . Because of these comments, numerous
members of Mr. Knight's promotion team were
verbally threatened and physically assaulted. [¶] In
addition to these threats and assaults, the
unauthorized Facebook page also severely
impacted Knight and 1203 Entertainment's business
deals. In 2014 and 2015, Knight was in negotiations
with numerous companies to sign lucrative deals
involving his music. But once representatives from
these companies, which included Nielsen
SoundScan and the Dallas Cowboys football team,
reviewed the content of the unauthorized Facebook
pages, they backed out of these negotiations.”
[*196]
Sometime in late 2014, Knight informed Facebook
of the comments and threats. And on June 5, 2015,
Knight's attorney sent a letter to Facebook
demanding that it remove the pages. Facebook
refused. This lawsuit followed.
The Proceedings Below
On February 16, 2016, plaintiffs filed a verified
complaint against Facebook. It alleged six causes of
action, styled as follows: (1) breach of written
contract; (2) negligent misrepresentation; (3)
negligent interference with prospective economic
relations; (4) breach of Civil Code section 3344; (5)
violation of common law right of [***6] publicity;
and (6) unlawful and unfair business practices,
Business and Professions Code section 17200 (the
UCL claim). Knight was a plaintiff in all six causes
of action; 1203 Entertainment was also a [**256]
plaintiff in the third cause of action; and the sixth
cause of action was apparently by all three
plaintiffs.1
1 The complaint says the cause of action is “by Both Plaintiffs,” but
as noted there are three.
14 Cal. App. 5th 190, *195; 222 Cal. Rptr. 3d 250, **255; 2017 Cal. App. LEXIS 691, ***3

The essence of the complaint was that Facebook
delayed in disabling the “Families Against Mikel
Knight” page, and failed to detect and quickly
remove two other claimed “unauthorized” pages
critical of Knight. This, plaintiffs claimed, violated
Facebook's terms and community standards and
Knight's right of publicity.2
On March 30, Facebook filed a demurrer, and a
special motion to strike (anti-SLAPP motion). The
anti-SLAPP motion contended that the complaint
arose from the exercise of the constitutional right of
free speech in connection with an issue of public
interest, and that plaintiffs could not show a
probability of success for two reasons: (1) the
claims were barred by the CDA, and (2) even if not,
the claims were not viable under California law.
Plaintiffs filed an opposition that included a
memorandum of points and authorities and three
declarations—of Knight; of Thomas Hairston,
senior vice-president [***7] of 1203
Entertainment; and of Attorney Mark Punzalan,
purporting to authenticate some 60 pages of
discovery and correspondence. Plaintiffs also filed
a request for judicial notice.
Facebook filed a reply, and the motion came on for
hearing on May 12. The trial court heard extensive
argument, at the conclusion of which it took the
matter under submission.
[*197]
On May 31, the trial court filed its order, a
comprehensive six single-spaced pages. The court
first held that the first step of the anti-SLAPP
analysis was satisfied, that “i[t] cannot be disputed
that Facebook's website and the Facebook pages at
issue are ‘public forums,’” and “the content of the
2 This was at least the second attempt by plaintiffs to sue Facebook.
In July 2015, Knight and 1203 Entertainment sued Facebook in
Tennessee state court and obtained an ex parte temporary restraining
order against Facebook. Facebook's motion to dissolve the order was
granted, the Tennessee court holding that Facebook was not the
creator of the content and that the Communications Decency Act of
1996 (47 U.S.C. § 230) (CDA) barred the claims.
subject Facebook pages concern public issues or
issues of public interest.” The court observed that
the lawsuit “clearly targets Facebook's ability to
maintain a forum for discussion of these issues,
including its discretion to remove content that
Plaintiffs find objectionable,” and concluded that
Facebook “met its initial burden of demonstrating
that Plaintiffs‘ claims arise out of protected
activity.”
As to step two, the court held that the first three
claims were barred by the CDA, going on to explain
that “[n]o provider or user of an interactive [***8]
computer service shall be treated as the publisher or
speaker of any information provided by another
information content provider.” (47 U.S.C. §
230(c)(1).) The court noted it was undisputed that
Facebook is an “‘interactive computer service,’”
and that the pages to which plaintiffs objected
contained content provided by another “information
content provider.” So, the trial court concluded, the
first three causes of action—for breach of contract,
negligent misrepresentation, and negligent
interference with prospective economic relations—
were barred because these causes of action
“treat[ed] Facebook as the ‘publisher’ … of the …
content” to which plaintiffs object. The court thus
granted the anti-SLAPP motion as to those three
claims.
[**257] The trial court went on to hold, however,
that the three other claims—the common law and
statutory right of publicity claims and the derivative
UCL claim—were not barred by the CDA. In
support of this holding, the court relied on 47
United States Code section 230(e)(2), which states
that “[n]othing in this section shall be construed to
limit or expand any law pertaining to intellectual
property.” In the court's view, “the right of
publicity protects a form of intellectual property,”
and therefore the CDA does not apply to [***9]
such claims. The court further held that Knight had
shown a probability of prevailing on his right of
publicity claims because he alleged that Facebook
ran advertisements adjacent to the “unauthorized”
pages created by the third parties critiquing Knight
14 Cal. App. 5th 190, *196; 222 Cal. Rptr. 3d 250, **256; 2017 Cal. App. LEXIS 691, ***6

and his business practices. Even though the
advertising run by Facebook adjacent to these
pages was entirely unrelated to, and did not use,
Knight's name or image, the trial court held that the
mere fact that Facebook allowed ads to be
displayed adjacent to the pages was sufficient to
state a right of publicity claim against it.
On June 16, Facebook filed a notice of appeal. On
August 23, plaintiffs filed their own notice of
appeal. We ordered the appeals consolidated.
[*198]
DISCUSSION
SLAPP Law and the Standard of Review
Subdivision (b)(1) of Code of Civil Procedure
section 425.163 provides that “[a] cause of action
against a person arising from any act of that person
in furtherance of the person's right of petition or
free speech under the United States Constitution or
the California Constitution in connection with a
public issue shall be subject to a special motion to
strike, unless the court determines that the plaintiff
has established that there is a probability that the
plaintiff [***10] will prevail on the claim.”
Subdivision (e) of section 425.16 elaborates the four
types of acts within the ambit of SLAPP.
We described the analysis under the anti-SLAPP
law in Hecimovich v. Encinal School Parent
Teacher Organization (2012) 203 Cal.App.4th 450,
463–464 [137 Cal. Rptr. 3d 455] (Hecimovich):
HN1[ ] CA(1)[ ] (1) “A two-step process is used
for determining whether an action is a SLAPP.
First, the court decides whether the defendant has
made a threshold showing that the challenged cause
of action is one arising from protected activity, that
is, by demonstrating that the facts underlying the
plaintiff's complaint fit one of the categories spelled
3 All statutory references are to the Code of Civil Procedure except
where otherwise noted.
out in section 425.16, subdivision (e). If the court
finds that such a showing has been made, it must
then determine the second step, whether the
plaintiff has demonstrated a probability of
prevailing on the claim. (Navellier v. Sletten (2002)
29 Cal.4th 82, 88 [124 Cal. Rptr. 2d 530, 52 P.3d
703] (Navellier).)
HN2[ ] CA(2)[ ] (2) “‘The Legislature enacted
section 425.16 to prevent and deter “lawsuits
[referred to as SLAPP's] brought primarily to chill
the valid exercise of the constitutional rights of
freedom of speech and petition for the redress of
grievances.” (§ 425.16, subd. (a).) Because these
meritless lawsuits seek to deplete “the defendant's
energy” and drain “his or her resources” [citation],
the Legislature sought “‘to prevent SLAPPs by
ending them early and without great cost to the
SLAPP target’” [citation]. Section 425.16 therefore
establishes a procedure [**258] where [***11]
the trial court evaluates the merits of the lawsuit
using a summary-judgment-like procedure at an
early stage of the litigation.’ (Varian Medical
Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192
[25 Cal. Rptr. 3d 298, 106 P.3d 958].)
CA(3)[ ] (3) “Finally, and as HN3[ ] subdivision
(a) of section 425.16 expressly mandates, the
section ‘shall be construed broadly.’
[*199]
“With these principles in mind, we turn to a review
of the issues before us, a review that is de novo.
(Grewal v. Jammu (2011) 191 Cal.App.4th 977,
988 [119 Cal. Rptr. 3d 835] (Grewal).)”
Plaintiffs' Lawsuit Involves an Issue of Public
Interest
Facebook's anti-SLAPP motion was based on
section 425.16, subdivision (e)(3). That subdivision
provides that an act in furtherance of the right of
free speech as described in section 425.16,
subdivision (b)(1) includes “any written or oral
statement or writing made in a place open to the
public or a public forum in connection with an
14 Cal. App. 5th 190, *197; 222 Cal. Rptr. 3d 250, **257; 2017 Cal. App. LEXIS 691, ***9

issue of public interest.”
As the trial court aptly observed, “[It] cannot be
disputed that Facebook's website and the Facebook
pages at issue are ‘public forums,’ as they are
accessible to anyone who consents to Facebook's
Terms.” This, of course, is consistent with the law
establishing that “[w]eb sites accessible to the
public … are ‘public forums’ for purposes of the
anti-SLAPP statute.” (Barrett v. Rosenthal (2006)
40 Cal.4th 33, 41, fn. 4 [51 Cal. Rptr. 3d 55, 146
P.3d 510].)
So, the issue is whether plaintiffs' lawsuit is based
on an “issue of public interest.” We conclude it is.
CA(4)[ ] (4) We begin our analysis with more
quotation from [***12] Hecimovich: “Like the
SLAPP statute itself, HN4[ ] the question whether
something is an issue of public interest must be
‘“‘construed broadly.’”’ (Gilbert v. Sykes (2007)
147 Cal.App.4th 13, 23 [53 Cal. Rptr. 3d 752]; see
Rivera v. First DataBank, Inc. (2010) 187
Cal.App.4th 709, 716 [115 Cal. Rptr. 3d 1]
(Rivera).) An ‘“‘issue of public interest’”’ is ‘“any
issue in which the public is interested.”’ (Rivera, at
p. 716, quoting Nygård, Inc. v. Uusi-Kerttula
(2008) 159 Cal.App.4th 1027, 1042 [72 Cal. Rptr.
3d 210].) A matter of ‘“‘public interest should be
something of concern to a substantial number of
people. [Citation.] … [T]here should be some
degree of closeness between the challenged
statements and the asserted public interest [citation]
… .’ ‘[T]he focus of the speaker's conduct should
be the public interest … .’” [Citation.]
Nevertheless, it may encompass activity between
private people.’ (Rivera, supra, 187 Cal.App.4th at
p. 716.)
“We look for ‘the principal thrust or gravamen of
the plaintiff's cause of action.’ (Martinez v.
Metabolife Internat., Inc. (2003) 113 Cal.App.4th
181, 188 [6 Cal. Rptr. 3d 494].) We ‘do not
evaluate the first prong of the anti-SLAPP test
solely through the lens of a plaintiff's cause of
action.’ (Stewart v. Rolling Stone LLC (2010) 181
Cal.App.4th 664, 679 [105 Cal. Rptr. 3d 98].) The
‘critical consideration’ is what the cause of action
is [*200] ‘based on.’ (Navellier, supra, 29 Cal.4th
at p. 89.)” (Hecimovich, supra, 203 Cal.App.4th at
pp. 464–465.)
As the trial court explained, the pages to which
Knight objected discussed incidents involving
contractors hired by plaintiffs, contractors who “fell
asleep behind the wheel in two separate incidents,
resulting in fatal collisions.” And as the trial
court [***13] concluded, “It is not a far stretch to
say that such incidents, and the circumstances
[**259] leading to them, are matters in which the
public would be interested.” Putting it slightly
differently, the issue involved the danger of trucks
on highways driven by sleep-deprived drivers. And
as to this, Google searches for tired truckdrivers
reveals millions of results. It is an issue of
tremendous concern.
Arguing in support of their appeal, plaintiffs make
two arguments. The first is that their claim is based
not on public statements, but rather, in plaintiffs'
words, is “premised specifically on Facebook's
statements made privately to Mr. Knight in August
2010 that Facebook would remove content where
there was a threat to physical harm.” Or, as
plaintiffs put it at a later point, “the trial court erred
by not focusing on ‘the specific nature of the
speech rather than the generalities that might be
abstracted from it.’ Here, the specific speech at
issue was Facebook's own promises to [plaintiffs],
not the speech of any third party.” Plaintiffs' second
argument is that the anti-SLAPP motion fails based
on the “commercial speech” exception in section
425.17.
The trial court rejected both arguments. So do we.
[***14] Plaintiffs' first argument is, as the trial
court concluded, inconsistent with the actual
allegations in their complaint, the clear gravamen
of which is Knight's objection to the third party
content on the pages and Facebook's editorial
decisions to not remove them. Thus, for example,
the complaint contains these allegations:
14 Cal. App. 5th 190, *199; 222 Cal. Rptr. 3d 250, **258; 2017 Cal. App. LEXIS 691, ***11

“Facebook Refuses to Disable the Unauthorized
Mikel Knight Page in Violation of Its Terms of
Service”;
“By refusing to disable the unauthorized Facebook
pages, Facebook has engaged in conduct that has
and will continue to cause significant physical harm
to Knight and MDRST independent contractors … .
But by refusing to disable the pages, Facebook
acted with a willful and conscious disregard for the
safety of Knight and MDRST independent
contractors”;
“By refusing to disable the unauthorized Facebook
pages, Facebook has violated the Terms of
Service.”
[*201]
Contrary to Knight's assertions, the complaint does
not arise from “private” statements or promises
made to Knight in Facebook's terms. Indeed,
similar arguments made by other plaintiffs against
Facebook have been rejected by district courts, in
language directly applicable here: “while
Facebook's Terms of Service [***15] ‘place
restrictions on users’ behavior,' they ‘do not create
affirmative obligations’” on Facebook. (Caraccioli
v. Facebook, Inc. (N.D.Cal. 2016) 167 F.Supp.3d
1056, 1064, quoting Young v. Facebook, Inc.
(N.D.Cal., Oct. 25, 2010, No. 5:10-cv-03579-
JF/PVT) 2010 WL 4269304, p. *3; see also
Klayman v. Zuckerberg (D.C. Cir. 2014) 753 F.3d
1354, 1359 [rejecting plaintiff's argument that
Facebook's terms of service give rise to a duty to
remove offensive content because “[t]he plain text
of the [terms of service] thus disavows the legal
relationship that [plaintiff] asserts”].)
Plaintiffs' brief states that “As a requirement to
signing up for Facebook, Mr. Knight had to accept
Facebook's Terms of Service. Among other things,
the Terms of Service—along with certain
‘supplemental terms’ specifically incorporated by
reference—prohibited harassing and violent speech
against Facebook users. These supplemental terms
also made an explicit promise to Knight: ‘We
remove credible threats of physical harm to
individuals.’ Facebook also stated that ‘[w]e want
people to feel safe when using Facebook,’ and
agreed to ‘remove content, disable accounts, and
work with law enforcement when we believe there
is a genuine risk of [**260] physical harm or
direct threats to public safety.’”4
CA(5)[ ] (5) As will be seen, there was much
language in Facebook's terms and conditions
providing for Facebook's [***16] discretion vis-à-
vis content on its pages. But even if statements in
Facebook's terms could be construed as
obligating [*202] Facebook to remove the pages—
which plaintiffs have not demonstrated—it would
not alter the reality that the source of Knight's
alleged injuries, the basis for his claim, is the
content of the pages and Facebook's decision not to
remove them, an act “in furtherance of the … right
of petition or free speech.” (§ 425.16, subd. (b)(1).)
As the Ninth Circuit tersely put it, HN5[ ]
4 Plaintiffs did not provide the actual terms in existence when Knight
joined Facebook, but specimen pages apparently in existence when
their opposition was filed. As to the language distilled in plaintiffs'
recitation, the actual language is as follows:
“Helping to Keep you Safe
“Direct Threats: How we help people who feel threatened by others
on Facebook.
“We carefully review reports of threatening language to identify
serious threats of harm to public and personal safety. We remove
credible threats of physical harm to individuals. We also remove
specific threats of theft, vandalism, or other financial harm.
“We may consider things like a person's physical location or public
visibility in determining whether a threat is credible. We may
assume credibility of any threats to people living in violent and
unstable regions.”
In the right-hand margin of this section were the following:
“Overview
“Direct Threats
“Self-Injury
“Dangerous Organizations
“Bullying and Harassment
“Attacks on Public Figures
“Criminal Activity
“Sexual Violence and Exploitation.”
14 Cal. App. 5th 190, *200; 222 Cal. Rptr. 3d 250, **259; 2017 Cal. App. LEXIS 691, ***14

“[W]here … an action directly targets the way a
content provider chooses to deliver, present, or
publish news content on matters of public interest,
that action is based on conduct in furtherance of
free speech rights and must withstand scrutiny
under California's anti-SLAPP statute.” (Greater
Los Angeles Agency on Deafness v. Cable News
(9th Cir. 2014) 742 F.3d 414, 424–425; see Hupp
v. Freedom Communications, Inc. (2013) 221
Cal.App.4th 398, 403 [163 Cal. Rptr. 3d 919]
[plaintiff's claim that defendant publisher breached
its user agreement with plaintiff by failing to
remove comments made on publisher's website
concerning plaintiff dismissed on anti-SLAPP
motion]; see also Wong v. Jing (2010) 189
Cal.App.4th 1354, 1362, 1366 [117 Cal. Rptr. 3d
747].)
Barnes v. Yahoo!, Inc. (9th Cir. 2009) 570 F.3d
1096 (Barnes), the primary case on which plaintiffs
rely, is distinguishable. There, a malicious ex-
boyfriend created an unauthorized Yahoo! profile
in the name of the plaintiff, his ex-girlfriend. (Id. at
p. 1098.) As the Ninth Circuit described, [***17] it
was a “dangerous, cruel, and highly indecent use of
the internet for the apparent purpose of revenge.”
(Ibid.) The plaintiff requested removal of the
profile numerous times, without success. Finally,
the plaintiff received a call from Yahoo!'s director
of communications, who made a specific promise
to remove the imposter profile, representing that
she would “‘personally walk the statements over to
the division responsible for stopping unauthorized
profiles and they would take care of it.’” (Id. at p.
1099.) The profile remained.
The plaintiff sued. The district court granted
Yahoo!'s motion to dismiss. The Ninth Circuit
affirmed in part and reversed in part, holding that
the plaintiff's negligent undertaking claim was
barred by the CDA, but her promissory estoppel
claim was not. (Barnes, supra, 570 F.3d 1096.)
Rather, the express promise by the director of
communications to take specific action to “take
care of it,” and the plaintiff's reasonable and
detrimental reliance upon the promise, [**261]
meant that the plaintiff's claims sought to hold
Yahoo! liable as a promisor rather than as a
publisher or speaker of third party content. As a
result, the CDA did not apply to the plaintiff's
promissory estoppel claim.
Knight has no promissory estoppel claim—
and [***18] Barnes no applicability here. Neither
does section 425.17.
[*203]
Section 425.17 provides that the SLAPP statute
“does not apply to any cause of action brought
against a person primarily engaged in the business
of selling or leasing goods or services … if both of
the following conditions exist: [¶] (1) The
statement or conduct consists of representations of
fact about that person's … business operations,
goods, or services, that is made for the purpose of
obtaining approval for, promoting, or securing sales
or leases of, or commercial transactions in, the
person's goods or services, or the statement or
conduct was made in the course of delivering the
person's goods or services. [¶] (2) The intended
audience is an actual or potential buyer or
customer, or a person likely to repeat the statement
to, or otherwise influence, an actual or potential
buyer or customer … .” (§ 425.17, subd. (c)(1),
(2).)
Attempting to invoke this exemption, Knight
focuses not on the actual statements or conduct that
are the basis of his right of publicity claims, but on
portions of unrelated statements made in
Facebook's terms and community standards. These,
Knight argues, somehow form the basis of his right
of publicity claim, and qualify as
“representations [***19] of fact” made by
Facebook for the purpose of selling more of its
goods or services. The argument fails, for several
reasons.
First, while Facebook sells advertising, it is not
“primarily engaged in the business of selling or
leasing goods or services.” Knight has not alleged
that it is. Nor could he, as Facebook offers a free
14 Cal. App. 5th 190, *202; 222 Cal. Rptr. 3d 250, **260; 2017 Cal. App. LEXIS 691, ***16

service to its users.
Second, the relevant “statements” at issue in
plaintiffs' complaint are not Facebook's terms and
community standards. To the contrary—and as
plaintiffs' complaint makes clear—Knight is not
challenging any commercial statement by Facebook
about its business operations. Rather, Knight's right
of publicity claims and the derivative UCL claim
arise from the speech of the third parties who
created the pages and posted negative comments
about Knight on them. Knight makes no attempt to
show that these third party statements constitute
“commercial speech” by Facebook.
Third, even if Facebook's terms and community
standards were the relevant statements or conduct
at issue here, Knight has not identified any
“representation of fact” that Facebook would
remove any objectionable content. Indeed, the
actual terms are to the contrary, providing in
essence [***20] that Facebook has the discretion
to remove content that violates Facebook policies.
By way of illustration, the terms include that: “We
can remove any content or information you post on
Facebook if we believe that it violates this
Statement or our policies.” The terms also make
clear that Facebook is not responsible for “the
content or information users transmit or share on
Facebook,” for “any offensive, inappropriate,
obscene, unlawful or otherwise objectionable
content or information you may encounter on
Facebook,” or for [*204] “the conduct, whether
online or offline, of any user of Facebook.” As
Facebook sums it up, “We do our best to keep
Facebook safe, but we cannot guarantee it.”
Facebook's community standards are no more
helpful to plaintiffs. The standards provide further
guidance to users about what kind of content they
can share on Facebook, and the types of
discretionary [**262] actions Facebook may take
with regard to content posted by others. And like
the terms, the community standards provide that
while Facebook may remove user content, it will
not always remove content that a particular user
might find objectionable. Examples include the
following:
“[P]lease keep in mind that something that [***21]
may be disagreeable or disturbing to you may not
violate our Community Standards.”
“Reporting something doesn't guarantee that it will
be removed because it may not violate [Facebook's]
policies.”
“Our review decisions may occasionally change
after receiving additional context about specific
posts or after seeing new, violating content
appearing on a Page or Facebook Profile.”
“Not all disagreeable or disturbing content violates
[Facebook's] Community Standards.”
None of these statements are a “representation[] of
fact” about Facebook's services made for the
purpose of soliciting users. They are not within
section 425.17. (See Simpson Strong-Tie Co., Inc.
v. Gore (2010) 49 Cal.4th 12, 31 [109 Cal. Rptr. 3d
329, 230 P.3d 1117] [promise in an advertisement
not commercial speech]; Navarro v. IHOP
Properties, Inc. (2005) 134 Cal.App.4th 834, 841
[36 Cal. Rptr. 3d 385] [allegedly false promises to
process potential buyers of plaintiff's franchise
rights without undue delay not a representation of
fact].)
Knight's reliance on Demetriades v. Yelp, Inc.
(2014) 228 Cal.App.4th 294 [175 Cal. Rptr. 3d
131] is misplaced. There, Yelp made a series of
affirmative representations about the accuracy of its
filtering software, including that it produced “‘the
most trusted reviews.’” (Id. at pp. 300–301.) The
trial court granted Yelp's anti-SLAPP motion. The
Court of Appeal reversed, holding that the
statements constituted commercial speech about the
reliability of Yelp's review filter product, [***22]
and were intended to reach third parties to induce
them to patronize Yelp's website—and in turn
induce businesses to purchase advertising on Yelp.
(Id. at p. 310.) Moreover, the court concluded that
Yelp's statements were factual, as opposed to mere
14 Cal. App. 5th 190, *203; 222 Cal. Rptr. 3d 250, **261; 2017 Cal. App. LEXIS 691, ***19

puffery or opinion, [*205] because they were
“specific and detailed statements intended to induce
reliance, such as: the filter ‘give[s]’ consumers the
‘most trusted’ reviews, and Yelp's engineers (a
word inspiring confidence) are working to provide
the ‘most unbiased and accurate’ information
available.” (Id. at p. 311.) The setting here is a far
cry.
Having concluded that the basis of the complaint is
an issue of public interest under step one of the
anti-SLAPP analysis, we turn to step two.
Plaintiffs Have Failed To Demonstrate a
Likelihood of Prevailing on the Merits
The Law
As to step two, we confirmed the applicable law in
Grewal v. Jammu, supra, 191 Cal.App.4th at page
989, there in the context of one plaintiff:
HN6[ ] CA(6)[ ] (6) “We decide the second step
of the anti-SLAPP analysis on consideration of ‘the
pleadings and supporting and opposing affidavits
stating the facts upon which the liability or defense
is based.’ (§ 425.16, subd. (b).) Looking at those
affidavits, ‘[w]e do not weigh credibility, nor do we
evaluate the weight of the evidence. Instead, we
accept [***23] as true all evidence favorable to the
plaintiff and assess the defendant's evidence only to
determine if it defeats the plaintiff's submission as a
matter of law.’ (Overstock.com, Inc. v. Gradient
Analytics, Inc. (2007) 151 Cal.App.4th 688, 699–
700 [61 Cal. Rptr. 3d 29].) [**263] [¶] That is the
setting in which we determine whether plaintiff has
met the required showing, a showing that is ‘not
high.’ (Overstock.com, Inc. v. Gradient Analytics,
Inc., supra, 151 Cal.App.4th at p. 699.) In the
words of the Supreme Court, plaintiff needs to
show only a ‘minimum level of legal sufficiency
and triability.’ (Linder v. Thrifty Oil Co. (2000) 23
Cal.4th 429, 438, fn. 5 [97 Cal. Rptr. 2d 179, 2
P.3d 27].) In the words of other courts, plaintiff
needs to show only a case of ‘minimal merit.’
(Peregrine Funding, Inc. v. Sheppard Mullin
Richter & Hampton LLP (2005) 133 Cal.App.4th
658, 675 [35 Cal. Rptr. 3d 31], quoting Navellier v.
Sletten[, supra,] 29 Cal.4th [at p.] 95, fn. 11 … .)”
As we stated in Hecimovich, supra, 203
Cal.App.4th at p. 469: “While plaintiff's burden
may not be ‘high,’ he must demonstrate that his
claim is legally sufficient. (Navellier, supra, 29
Cal.4th at p. 93.) And he must show that it is
supported by a sufficient prima facie showing, one
made with ‘competent and admissible evidence.’
(Tuchscher Development Enterprises, Inc. v. San
Diego Unified Port Dist. (2003) 106 Cal.App.4th
1219, 1236 [132 Cal. Rptr. 2d 57]; see Evans v.
Unkow (1995) 38 Cal.App.4th 1490, 1497 [45 Cal.
Rptr. 2d 624].)”
[*206]
In sum, to defeat an anti-SLAPP motion, plaintiffs
“‘“must demonstrate that the complaint is both
legally sufficient and supported by a sufficient
prima facie showing of facts to sustain a favorable
judgment.”’” (Premier Medical Managements
Systems, Inc. v. California Ins. Guarantee Assn.
(2006) 136 Cal.App.4th 464, 476 [39 Cal.Rptr.3d
43].) Plaintiffs' demonstration does not measure up.
The First, Second, and Third Causes of Action
As noted, the trial court granted the anti-SLAPP
motion [***24] as to plaintiffs' first three causes of
action, for breach of contract, negligent
misrepresentation, and negligent interference,
holding that the CDA barred these three claims. We
reach the same conclusion.
The CDA provides in pertinent part that “[n]o
provider or user of an interactive computer service
shall be treated as the publisher or speaker of any
information provided by another information
content provider.” (47 U.S.C. § 230(c)(1).) An
“‘interactive computer service’” is “any
information service, system … that provides or
enables computer access by multiple users to a
computer server.” (Id., § 230(f)(2).) And an
14 Cal. App. 5th 190, *204; 222 Cal. Rptr. 3d 250, **262; 2017 Cal. App. LEXIS 691, ***22

“‘information content provider’” is “any person or
entity that is responsible, in whole or in part, for the
creation or development of information provided
through the Internet or any other interactive
computer service.” (Id., § 230(f)(3).)
As Congress itself put it, the reason for excluding
interactive computer services from liability for
republication was “to promote the continued
development of the Internet and other interactive
computer services … [¶] … [and] to preserve the
vibrant and competitive free market that presently
exists for the Internet and other interactive
computer services, unfettered by Federal
or [***25] State regulation.” (47 U.S.C. §
230(b)(1), (2); see Batzel v. Smith (9th Cir. 2003)
333 F.3d 1018, 1026–1029.) To that end, CDA
immunity is to be construed broadly, “to protect
websites not merely from ultimate liability, but
from having to fight costly and protracted legal
battles.” (Fair Housing Council, San Fernando v.
Roommates.com (9th Cir. 2008) 521 F.3d 1157,
1175.)
[**264] As quoted above, the trial court held the
CDA applied to Knight's first three claims because
“(1) Facebook is an ‘interactive computer service’;
(2) Plaintiffs' claims treat Facebook as the
‘publisher’ or ‘speaker’ of the offending content;
and (3) the offending content was ‘provided by
another information content provider.’” Knight
disputes only the third conclusion. In Knight's
words, his “Complaint specifically alleges that
Facebook is liable because of its own promises and
representations to [Knight], not because of anyone
else's statements. And the CDA does not immunize
website providers [*207] for failing to adhere to
legally enforceable promises such as the ones at
issue here.” Or, as Knight goes on, he does “not
allege that Facebook is vicariously liable for the
statements of any third parties,” but rather “that
Facebook failed to adhere to its own legally
enforceable promise.”
CA(7)[ ] (7) This, of course, is the same argument
Knight made in connection with step one, an
argument we rejected. [***26] It has no more
merit in step two. HN7[ ] In evaluating whether a
claim treats a provider as a publisher or speaker of
user-generated content, “what matters is not the
name of the cause of action”; instead, “what
matters is whether the cause of action inherently
requires the court to treat the defendant as the
‘publisher or speaker’ of content provided by
another.” (Barnes, supra, 570 F.3d at pp. 1101–
1102.) Put slightly differently, “courts must ask
whether the duty that the plaintiff alleges the
defendant violated derives from the defendant's
status or conduct as a ‘publisher or speaker.’ If it
does, section 230(c)(1) precludes liability.”
(Barnes, supra, at p. 1102; see Gentry v. eBay, Inc.
(2002) 99 Cal.App.4th 816, 832–833 [121
Cal.Rptr.2d 703].)
Based on that principle, numerous courts have held
the CDA bars claims based on a failure to remove
content posted by others. (Hupp v. Freedom
Communications, Inc., supra, 221 Cal.App.4th at p.
405 [CDA barred breach of contract claim arising
from newspaper's failure to remove comments on
website]; Doe II v. MySpace Inc. (2009) 175
Cal.App.4th 561, 573 [96 Cal. Rptr. 3d 148] [CDA
barred tort claims seeking to hold MySpace liable
for “failing to exercise a publisher's traditional
editorial functions, namely deciding whether to
publish certain material or not”]; Gentry v. eBay,
Inc., supra, 99 Cal.App.4th at p. 835 [CDA barred
negligence claim based on eBay's failure to remove
or alter allegedly fraudulent product descriptions].)
In fact, it was based on the CDA that [***27] the
cases cited above ruled in favor of Facebook. (See
Caraccioli v. Facebook, Inc., supra, 167 F.Supp.3d
at pp. 1064–1065 [dismissing plaintiff's claims for
breach of contract and negligence for Facebook's
decision not to remove content, as liability based on
that sort of vicarious responsibility is what § 230 of
the CDA seeks to avoid]; Klayman v. Zuckerberg,
supra, 753 F.3d at p. 1357; Sikhs for Justice
“SFJ,” Inc. v. Facebook, Inc. (N.D.Cal. 2015) 144
F.Supp.3d 1088, 1094–1095 [CDA barred claim
alleging that Facebook violated title II of the Civil
Rights Act of 1964 (42 U.S.C. § 2000a) by blocking
14 Cal. App. 5th 190, *206; 222 Cal. Rptr. 3d 250, **263; 2017 Cal. App. LEXIS 691, ***24

access to plaintiff's Facebook page in India because
it sought “to hold Defendant liable for Defendant's
decision ‘whether to publish’ third-party content”].)
The Fourth, Fifth, and Sixth Causes of Action
As noted, the trial court denied the motion as to the
remaining three causes of action, Knight's claims
for (4) violation of Civil Code section 3344,
(5) [*208] common law right of publicity, and (6)
the derivative UCL claim on behalf of all plaintiffs.
The [**265] expressed reason was title 47 United
States Code section 230, subdivision (e)(2), which
states that “[n]othing in this section shall be
construed to limit or expand any law pertaining to
intellectual property.” In the court's view, “the right
of publicity protects a form of intellectual
property,” and therefore the CDA does not apply to
such claims. The court further held that Knight had
shown a probability of prevailing on his right of
publicity [***28] claims because he alleged that
Facebook ran advertisements adjacent to the
“unauthorized” pages created by third parties
critiquing Knight and his business practices. We
conclude this was error.
The fourth cause of action, for statutory right of
publicity, is based on Civil Code section 3344,
which provides in relevant part as follows: “Any
person who knowingly uses another's name, voice,
signature, photograph, or likeness, in any manner
… for purposes of advertising or selling … without
such person's prior consent, … shall be liable for
any damages sustained by the person or persons
injured as a result … .” (Civ. Code, § 3344, subd.
(a).)
CA(8)[ ] (8) The fifth cause of action is for
common law right of publicity. HN8[ ] That claim
has four elements: (1) defendant's use of plaintiff's
identity; (2) the appropriation of plaintiff's name or
likeness to defendant's advantage, commercially or
otherwise; (3) lack of consent; and (4) resulting
injury. (Maxwell v. Dolezal (2014) 231 Cal.App.4th
93, 97 [179 Cal. Rptr. 3d 807]; Stewart v. Rolling
Stone LLC, supra, 181 Cal.App.4th at p. 679.)
The sixth cause of action, the UCL claim, is, as
plaintiffs' counsel acknowledged, a derivative claim
based on the other two.
HN9[ ] CA(9)[ ] (9) Civil Code section 3344
was intended to complement, not supplant,
common law claims for right of publicity. (Kirby v.
Sega of America, Inc. (2006) 144 Cal.App.4th 47,
55 [50 Cal. Rptr. 3d 607], citing Comedy III
Productions, Inc. v. Gary Saderup, Inc. (2001) 25
Cal.4th 387, 391 [106 Cal. Rptr. 2d 126, 21 P.3d
797].) And “[t]o prove the statutory remedy, a
plaintiff must present evidence [***29] of ‘all the
elements of the common law cause of action’ and
must also prove ‘a knowing use by the defendant as
well as a direct connection between the alleged use
and the commercial purpose.’” (Orthopedic
Systems, Inc. v. Schlein (2011) 202 Cal.App.4th
529, 544 [135 Cal. Rptr. 3d 200].)
In light of the interrelatedness of the three clams,
we analyze them together—and conclude plaintiffs
cannot prevail.
Both Civil Code section 3344 and the common law
require that Facebook “use[]” the plaintiff's
identity. (See Montana v. San Jose Mercury News,
Inc. (1995) 34 Cal.App.4th 790, 793 [40 Cal. Rptr.
2d 639].) The evidence here demonstrated no such
use.
[*209]
We start with the observation that the complaint
expressly alleges that the content at issue was
created by third parties: “this unauthorized
Facebook page was created by persons related to
the injured and deceased independent contractors.”
Responding to this, Knight asserts that “the
Complaint alleges that Facebook continued to place
ads on all the unauthorized Facebook pages using
Mikel Knight's name, and that Facebook refused to
disable the unauthorized pages to continue
generating revenue at the expense of using Knight's
name or likeness.” The complaint also alleges,
however conclusionary, that “Facebook has used
14 Cal. App. 5th 190, *207; 222 Cal. Rptr. 3d 250, **264; 2017 Cal. App. LEXIS 691, ***27

Knight's name and likeness for the purpose of
advertising on the unauthorized Facebook pages.”
CA(10)[ ] (10) To begin with, the allegations are
unavailing. [***30] The law is that HN10[ ]
plaintiffs cannot [**266] rely on their pleading,
even if verified, to demonstrate a probability of
success on the merits. (Hecimovich, supra, 203
Cal.App.4th at p. 474; Paiva v. Nichols (2008) 168
Cal.App.4th 1007, 1017 [85 Cal. Rptr. 3d 838];
Roberts v. Los Angeles County Bar Assn. (2003)
105 Cal.App.4th 604, 613–614 [129 Cal. Rptr. 2d
546].) Whatever the complaint may allege, it is not
sufficient to defeat an anti-SLAPP motion. The
evidence is what counts.
In any event, the conclusory assertions are belied
by the actual complaint. Nowhere does Knight
demonstrate that the advertisements appearing next
to the pages used his name or likeness, or that any
of the advertisements were created by, or
advertised, Facebook. All he claims is that
Facebook displayed advertisements next to pages
created by third parties who were using Knight's
name and likeness to critique his business
practices—and their allegedly fatal consequences.
While Knight claims that “Facebook continues to
place ads on all the unauthorized Facebook pages,”
he necessarily concedes that his name and likeness
appear not in the ads themselves, but in the content
posted to Facebook by third parties.5 This is
insufficient.
Perfect 10, Inc. v. Google, Inc. (C.D.Cal., July 30,
2010, No. CV 04-9484 AHM (SHx)) 2010 WL
9479060, p. *13, affirmed (9th Cir. 2011) 653 F.3d
976, is instructive. In that case Google provided a
service called Blogger, which allowed Blogger
account holders to create [***31] their own blogs
hosted on Google's servers. (Perfect 10, Inc. v.
Google, Inc. (C.D.Cal., July 26, 2010, No. CV 04-
9484 AHM (SHx)) 2010 WL 9479059, p. *2.)
5 This is confirmed by Knight's submission of excerpts of the
unauthorized pages “Jason cross aka mikel knight” and “Prove
yourself Jason Cross aka Mikel Knight,” pages that show only
unrelated, sponsored content adjacent to the pages.
Perfect 10, which created and sold pictures of nude
models, brought claims against Google for
appropriation of the name and likeness of models
featured in its photographs that had been uploaded
by Blogger account holders. (Id. at p. *1; see
Perfect 10, Inc. v. Google, Inc., supra, 2010 WL
9479060 at p. *2.)
[*210]
Just as Knight contends here, Perfect 10 contended
Google “‘materially contribut[ed] to violations of
Perfect 10's assigned rights of publicity by
providing the advertising’” on the Blogger pages,
which “‘satisfie[d] the commercial purpose
necessary to establish a violation of Section
3344(a) and the common law.’” (Perfect 10, Inc. v.
Google, Inc., supra, 2010 WL 9479060 at p. *13.)
The district court disagreed, holding that Google's
“contribut[ion]” to violations committed by its
Blogger users was not actionable without a
showing of use by Google itself: “P10 [(Perfect
10)] has not shown that Google is, in fact,
inappropriately using the models' likenesses.
Because both the statutory and common law
versions of a right of publicity claim require that
the defendant actually use the plaintiff's likeness …
P10 has not established that it is likely to prevail on
its right of publicity claim.” (Ibid., citing Fleet v.
CBS, Inc. (1996) 50 Cal.App.4th 1911, 1918 [58
Cal. Rptr. 2d 645].)
The gravamen of [***32] Knight's complaint is
that Facebook displayed unrelated ads from
Facebook advertisers adjacent to the content that
allegedly used Knight's name and likeness—
content, Knight concedes, created by third party
users. He has not, and cannot, offer any evidence
that Facebook used his name or likeness in any
way. (Montana v. San Jose Mercury News, Inc.,
supra, 34 Cal.App.4th at p. 793, quoting Eastwood
v. Superior Court (1983) 149 Cal.App.3d 409, 417
[198 Cal. Rptr. 342] [requiring “‘defendant's use of
the plaintiff's identity’”]; see [**267] Perfect 10,
Inc. v. Google, Inc., supra, 2010 WL 9479060 at p.
*13 [“a plaintiff must show that the defendant
appropriated the plaintiff's name or likeness for
14 Cal. App. 5th 190, *209; 222 Cal. Rptr. 3d 250, **265; 2017 Cal. App. LEXIS 691, ***29

commercial purposes”].)
CA(11)[ ] (11) In sum, the evidence demonstrates
that Facebook has not used Knight's identity, and
any right of publicity claims fail for this reason
alone. Likewise for failure to show appropriation.
As noted, one of the requisite elements of a
common law right to publicity claim is that
defendant appropriated plaintiff's name “to
defendant's advantage, commercially or otherwise.”
Similarly, Civil Code section 3344, subdivision (a)
requires that the name be used “for purposes of
advertising or selling.” Plaintiffs' showing falls
short.
CA(12)[ ] (12) Plaintiffs assert that Civil Code
section 3344's “commercial use” requirement does
not need to “involve some form of advertising or
endorsement.” This is simply incorrect, as HN11[
] Civil Code section 3344, subdivision (a) explicitly
provides for possible liability on “[a]ny
person [***33] who knowingly uses another's
name, voice, signature, photograph, or likeness, in
any manner … for purposes of advertising …
without such person's prior consent.” The statute
requires some “use” by the advertiser aimed at
obtaining a commercial advantage for the
advertiser. (See, e.g., Eastwood v. Superior Court,
supra, [*211] 149 Cal.App.3d at p. 420 [“Turning
to whether the Enquirer has commercially exploited
Eastwood's name, photograph or likeness, we note
that one of the primary purposes of advertising is to
motivate a decision to purchase a particular product
or service.”].)
Knight has not even alleged—let alone shown—
that any advertiser used his name or likeness. He
thus cannot establish that anyone, let alone
Facebook, obtained an advantage through use of his
identity. Indeed, the evidence Knight submitted
below demonstrated either that no advertisements
appeared alongside the pages at issue, or that the
advertisements that did appear adjacent to the
content posted by third parties made no use of his
name or likeness. At most, Knight has shown that
Facebook allowed unrelated third party
advertisements to run adjacent to pages containing
users‘ comments about Knight and his business
practices. This is insufficient.
Newcombe v. Adolph Coors Co. (9th Cir. 1998)
157 F.3d 686 (Newcombe) is persuasive.
Plaintiff [***34] Newcombe, a recovering
alcoholic, was an all-star pitcher whose major
league career was cut short due to his service in the
military and a personal battle with alcohol. Killian's
Irish Red Beer, owned by Coors Brewing Co.,
published an advertisement in Sports Illustrated that
featured a drawing of an old-time baseball game.
The drawing was on the left half of the full-page
advertisement; the right half was filled with text
and a picture of a glass of beer. The baseball scene
focused on a pitcher in a windup position, and the
background included a single infielder and an old-
fashioned outfield fence. The players‘ uniforms did
not depict an actual team, and the background did
not depict an actual stadium. However, Newcombe,
along with family, friends and former teammates,
immediately recognized the pitcher featured in the
advertisement as Newcombe in his playing days.
(Id. at p. 689.)
Newcombe filed suit in California state court
against several defendants, including Coors and
Time, the publisher of Sports Illustrated, alleging
that his identity had been misappropriated in
violation of California statutory and common law,
and that the advertisement was defamatory.
Defendants removed the case to federal [***35]
court, which thereafter granted defendants' motion
for summary judgment. The Ninth [**268] Circuit
reversed in part, finding factual issues as to
defendant Coors. But as to defendant Time, the
Ninth Circuit affirmed. Applying California law,
the court held that “the use of Newcombe's likeness
could not be said to have directly benefited Time,
Inc., the publisher of Sports Illustrated, because the
benefit they received—payment for the advertising
space—was unrelated to the contents of the
advertisement.” (Newcombe, supra, 157 F.3d at p.
693.)
14 Cal. App. 5th 190, *210; 222 Cal. Rptr. 3d 250, **267; 2017 Cal. App. LEXIS 691, ***32

Here, any “benefit” to Facebook from the use of
Knight's name and likeness is even more
attenuated. The advertisement in Newcombe
actually [*212] depicted Newcombe, but Time was
still not liable for the sale of advertising space to a
third party that used Newcombe's identity in its ads.
The advertisements here did not depict Knight,
using neither his name nor identity. They were, as
in Newcombe, “unrelated to the contents” of those
pages.
Stewart v. Rolling Stone LLC, supra, 181
Cal.App.4th 664, is also instructive. The plaintiffs
there were indie rock musicians whose band names
were included with the names of over 100 other
bands in an editorial feature that appeared in the
magazine. The feature consisted primarily of a
four-page foldout described by the [***36] parties
as a butterfly gatefold, which foldout contained a
cigarette ad appearing as a two-page spread. The
gravamen of the complaint was that defendants
used the band names of plaintiffs (and other
members of the class) knowingly and deliberately
for the commercial purpose of advertising
cigarettes without their prior authorization. The
trial court denied defendants‘ special motion to
strike. Our colleagues in Division One reversed,
concluding “there is no legal precedent for
converting noncommercial speech into commercial
speech merely based on its proximity to the latter.”
(Id. at p. 689.)
Here, as in Newcombe and Stewart, there was no
commercial benefit to Facebook from the use of
Knight's likeness. Simply, the appearance of
advertisements next to a third party's use of
Knight's identity is insufficient to demonstrate a
commercial use by Facebook. It has not benefited
Facebook in any actionable way.
As indicated, to defeat an anti-SLAPP motion,
Knight “‘“must demonstrate that the complaint is
both legally sufficient and supported by a sufficient
prima facie showing of facts to sustain a favorable
judgment.”’” (Premier Medical Management
Systems, Inc. v. California Ins. Guarantee Assn.,
supra, 136 Cal.App.4th at p. 476.) This, he has
failed to do, and the fourth, fifth, and sixth causes
of action must [***37] be stricken.6
In light of the above, we need not address
Facebook's argument that the fourth, fifth, and sixth
causes of action fail based on the public interest
defense based on the First Amendment. (See Civ.
Code, § 3344, subd. (d) [“use of a name, voice,
signature, photograph, or likeness in connection
with any news, public affairs, or sports broadcast or
account, or any political campaign, shall not
constitute a use for which consent is required”];
Dora v. [*213] Frontline Video, Inc. (1993) 15
Cal.App.4th 536, 545 [18 Cal. Rptr. 2d 790] [scope
of “public affairs” and the “public interest” is broad
and “include[s] things that would not necessarily be
considered [**269] news”].) Nor the argument
that these claims are barred by the immunity
created by the CDA.
DISPOSITION
The May 31, 2016 order is affirmed in part and
reversed in part, and the matter is remanded to the
trial court with instructions to (1) enter an order
granting the anti-SLAPP motion in its entirety and
striking the complaint, and (2) hold a hearing,
following further briefing, to award Facebook the
attorney fees to which it is entitled under section
425.16. Facebook shall recover its costs on appeal.
Stewart, J., and Miller, J., concurred.
End of Document
6 As to the sixth cause of action, the UCL claim, plaintiffs assert that
Facebook waived its argument as to this claim for failure to address
it specifically. We disagree, especially as the trial court concluded—
and Knight admits—that the UCL claim was derivative of Knight's
right of publicity claims which “serve as the predicate unlawful
business practices under the UCL.” In any event, Facebook
mentioned the issue in its opening brief.
14 Cal. App. 5th 190, *211; 222 Cal. Rptr. 3d 250, **268; 2017 Cal. App. LEXIS 691, ***35