Filed 2/15/17
                        CERTIFIED FOR PUBLICATION

          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           FIRST APPELLATE DISTRICT

                                   DIVISION FIVE


PAUL ARGENTIERI,
        Plaintiff and Appellant,
                                                  A147932
v.
MARK ELLIOT ZUCKERBERG et al.,                    (San Francisco County
                                                  Super. Ct. No. CGC-15-548503)
        Defendants and Respondents.




        Paul Argentieri appeals from an order granting the motion of respondents Mark
Elliot Zuckerberg, Facebook, Inc., and Colin Stretch to strike Argentieri’s complaint for
defamation under the anti-Strategic Lawsuit Against Public Participation (SLAPP) statute
(Code Civ. Proc., § 425.16).1 Argentieri contends the court erred in concluding that he
had not demonstrated a probability of prevailing on his defamation claim.
        We will affirm the order. Although the statement underlying Argentieri’s
defamation claim was not subject to the litigation privilege of Civil Code section 47,
subdivision (b), it was subject to the fair and true reporting privilege of Civil Code
section 47, subdivision (d). He therefore has no probability of prevailing on his claim.
                       I. FACTS AND PROCEDURAL HISTORY
        Argentieri was an attorney for Paul Ceglia throughout Ceglia’s lawsuit against
Facebook, Inc. (Facebook) and its founder, Mark Elliott Zuckerberg (Zuckerberg).

1
      The grant of a special motion to strike under Code of Civil Procedure section
425.16 is immediately appealable. (Code Civ. Proc., § 425.16, subd. (i).)
                                           1
Ceglia’s lawsuit was dismissed on the grounds that the lawsuit was a fraud on the court
and Ceglia had spoliated evidence. Facebook and Zuckerberg then sued Argentieri and
others for malicious prosecution and deceit, and Facebook’s general counsel, Colin
Stretch (Stretch), sent an email to members of the press stating that the law firms named
in the malicious prosecution complaint, including Argentieri, “knew [Ceglia’s lawsuit]
was based on forged documents yet they pursued it anyway.” After a court found that the
complaint did not state a claim for malicious prosecution against certain defendants,
Argentieri sued Facebook, Zuckerberg, and Stretch in the matter now before us, alleging
that he was defamed by Stretch’s statement. The only issue in this appeal is the trial
court’s dismissal of Argentieri’s lawsuit under the anti-SLAPP law.
       A. Ceglia’s New York Lawsuit Against Facebook
       In June 2010, Ceglia filed a lawsuit against Zuckerberg and Facebook in New
York state court. Argentieri signed the complaint, and Ceglia verified it. The complaint
alleged that Ceglia and Zuckerberg had entered into a written contract in April 2003, by
which Ceglia would acquire an interest in “The Face Book” in exchange for $1,000 and
certain other consideration. Pursuant to this contract, Ceglia allegedly became entitled to
an 84 percent ownership interest in Facebook. Attached as an exhibit to the complaint
was a document entitled “ ‘Work for Hire’ Contract,” purportedly signed by Ceglia and
Zuckerberg on April 28, 2003 (Work for Hire Contract).
       Upon filing the complaint, Argentieri and Ceglia obtained an ex parte temporary
restraining order that prevented Facebook from transferring or selling any assets or stock
in the company for about 17 days. A few days after the complaint was filed, Argentieri
contacted Facebook and suggested meetings to discuss settlement. In July 2010, the case
was removed to federal district court for the Western District of New York.
       In 2011, Argentieri recruited other law firms to help represent Ceglia. Eventually,
law firms including DLA Piper LLP (DLA Piper), Lippes Mathias Wexler Friedman LLP



                                          2
(Lippes), and Kasowitz Benson Torres & Friedman LLP (Kasowitz), along with
Argentieri, represented Ceglia in his lawsuit against Zuckerberg and Facebook.
             1. Kasowitz Tells Argentieri The Contract Is Fraudulent
      On March 30, 2011, a forensic e-discovery consultant working with Kasowitz
discovered on Ceglia’s computer the original contract between Ceglia and Zuckerberg
attached to contemporaneous emails; the consultant concluded that the document had
been altered to create the Work for Hire Contract by adding references to Facebook.
Kasowitz notified Argentieri of these findings and immediately withdrew as Ceglia’s
counsel.
             2. Ceglia’s Amended Complaint
      On April 11, 2011, Ceglia filed an amended complaint in federal court signed by
DLA Piper, with co-counsel identified as Argentieri and Lippes. Like Ceglia’s original
complaint, his amended complaint attached a copy of the “Work for Hire Contract” and
alleged that Zuckerberg had breached it. The amended complaint also quoted alleged
emails between Ceglia and Zuckerberg.
             3. Kasowitz’s Letter and the Parties’ Expedited Discovery
      On April 13, 2011, Kasowitz sent a letter to Lippes, with a copy to Argentieri and
lawyers for DLA Piper, advising that documents Kasowitz had reviewed from Ceglia’s
computer on March 30, 2011, “established that page 1 of the [Work for Hire Contract] is
fabricated.” It also noted that Kasowitz had communicated these findings to Argentieri
on March 30, April 4, and April 12, 2011. Kasowitz agreed to refrain from reporting the
matter to the court pending an investigation that Lippes had promised to undertake.2



2
        By letter dated June 3, 2011, Kasowitz notified Lippes that Kasowitz conferred
with counsel and was advised that Kasowitz was not obligated to take further actions
regarding Ceglia’s pleadings. Respondents do not address this letter; appellants overstate
it, urging that Kasowitz “effectively withdrew their objections to Ceglia’s lawyers
proceeding with his case.”
                                         3
        In June 2011, the parties filed cross-motions for expedited discovery regarding the
authenticity of the Work for Hire Contract. In support of Facebook’s motion, Zuckerberg
submitted a declaration in which he denied signing the Work for Hire Contract and set
forth his own version of the events. Zuckerberg averred that, while a freshman at
Harvard in early 2003, he had responded to an online job listing regarding the
development of a website for a company named StreetFax. Around April 2003,
Zuckerberg entered into a written contract with Ceglia, by which Zuckerberg agreed to
provide limited website development services for StreetFax.com only. The StreetFax
contract did not concern Facebook or any related social networking service or website—
in fact, Zuckerberg had not even conceived of the idea of Facebook until months later in
December 2003. Zuckerberg performed development work for StreetFax in 2003 and
early 2004, although Ceglia failed to pay Zuckerberg in full for his services.
        On the eve of the hearing on the motions for expedited discovery, DLA Piper and
Lippes withdrew from the case without explanation, leaving Argentieri and other
attorneys representing Ceglia.
        A federal magistrate ordered expedited discovery into the authenticity of the Work
for Hire Contract and purported emails, requiring, among other things, that Ceglia
produce the original purported contract and the native electronic version by July 15,
2011.
              4. Dismissal of Ceglia’s Lawsuit
        After discovery, Facebook and Zuckerberg filed a motion to dismiss Ceglia’s
lawsuit on the basis that the StreetFax contract was the true agreement between
Zuckerberg and Ceglia, the Work for Hire Contract and alleged emails were fraudulent,
and Ceglia had spoliated evidence.
        In March 2013, a federal magistrate issued a 155-page Report and
Recommendation, proposing that the district court exercise its inherent power to dismiss
the lawsuit as a fraud on the court and due to Ceglia’s spoliation. The magistrate found

                                          4
there was clear and convincing evidence that the StreetFax contract was the “authentic
contract governing the business relationship” between Ceglia and Zuckerberg. The
magistrate also found that Facebook had proven, by clear and convincing evidence, “the
fraudulent nature of the Work for Hire Document and the supporting emails.” He further
found that it was “reasonably certain that the Work for Hire Document and the supporting
e-mails were fabricated for the express purpose of filing the instant action.” In addition,
the magistrate determined, Ceglia had “engaged in sufficient spoliation of evidence to
support outright dismissal of the action.” The magistrate concluded that Ceglia had
created at least two distinct physical versions of the forged Work for Hire Document,
“baked” the Work for Hire Contract to thwart ink analysis, and destroyed at least six USB
removable storage devices containing relevant evidence.
       In March 2014, the district court adopted the magistrate’s “admirably well-
reasoned Report and Recommendation” and dismissed Ceglia’s lawsuit because the Work
for Hire Contract was a fabrication and, alternatively, because of Ceglia’s spoliation of
evidence.
       In April 2015, the Second Circuit Court of Appeals affirmed the dismissal. Noting
Ceglia’s “total disregard for [the] judicial system,” the court concluded that “the
discovery of the real StreetFax contract . . . put[] the lie to Ceglia’s claim” and opined
that many of the font and formatting “irregularities” in the forged document “are apparent
[even] to the naked, untrained eye.” The court also affirmed the dismissal on the basis of
Ceglia’s “extensive spoliation.” 3



3
       In October 2012, during the pendency of the motion to dismiss Ceglia’s
amended complaint, federal agents arrested Ceglia on two felony counts for fraud
allegedly committed in bringing and prosecuting his lawsuit. Ceglia was indicted,
and his criminal trial was scheduled to begin in the Southern District of New York
in May 2015. In March 2015, Ceglia removed his electronic monitoring device and
fled house arrest. Argentieri points out, however, that the government’s forensic
experts were unable to ascertain whether the signature on the Work for Hire
                                           5
       B. Facebook/Zuckerberg’s Malicious Prosecution Action and Stretch Email
       In October 2014, after Ceglia’s civil case was dismissed in federal court in New
York, Facebook and Zuckerberg filed a lawsuit in state court in New York against
lawyers who had represented Ceglia in his lawsuit: Argentieri and his law firm, DLA
Piper, Lippes, Milberg LLP, and individual lawyers from those firms.
              1. Facebook/Zuckerberg’s Allegations
       The complaint asserted claims for malicious prosecution and deceit in violation of
New York Judicial Law section 487.4 It alleged that Argentieri and the other lawyers
“conspired to file and prosecute a fraudulent lawsuit against Facebook and [Zuckerberg],
based on fabricated evidence, for the purpose of extorting a lucrative and unwarranted
settlement.” According to the complaint, Argentieri and the other lawyers knew that the
lawsuit was a fraud, yet continued to pursue it anyway. More specifically, the complaint
alleged: “The lawyers representing Ceglia knew or should have known that the lawsuit
was a fraud—it was brought by a convicted felon with a history of fraudulent scams, and
it was based on an implausible story and obviously forged documents. In fact,
Defendants’ own co-counsel discovered the fraud, informed the other lawyers, and
withdrew. Despite all this, Defendants vigorously pursued the case in state and federal
courts and in the media.” (Italics added.)
              2. Stretch’s Statement Emailed to the Press
       On October 20, 2014, the same day that Facebook and Zuckerberg filed their
malicious prosecution action, Facebook’s general counsel Stretch sent an email to
members of the press, allegedly on behalf of Facebook and Zuckerberg (Statement).

Contract was a forgery. He urges that the arrest of Ceglia was orchestrated by
respondents’ lawyers.
4
        New York Judicial Law section 487 provides, in part: “An attorney or counselor
who: [¶] 1. Is guilty of any deceit or collusion, or consents to any deceit or collusion, with
intent to deceive the court or any party; . . . [¶] Is guilty of a misdemeanor, and in
addition to the punishment prescribed therefor by the penal law, he forfeits to the party
injured treble damages, to be recovered in a civil action.”
                                             6
Stretch’s Statement asserted: “ ‘We said from the beginning that Paul Ceglia’s claim was
a fraud and that we would seek to hold those responsible accountable. DLA Piper and the
other named law firms knew the case was based on forged documents yet they pursued it
anyway, they should be held to account.’ ” (Italics added.) This Statement is the basis of
Argentieri’s defamation action now before us.
              3. Dismissal of Facebook/Zuckerberg’s Malicious Prosecution Action
       Argentieri filed an answer to the complaint and served discovery requests. The
other defendants, however, filed a motion to dismiss the complaint on the ground it failed
to state a cause of action for malicious prosecution or a violation of section 487 of New
York’s Judiciary Act. A trial judge in the New York Supreme Court denied the motion to
dismiss in May 2015.
       In December 2015, the New York Appellate Division unanimously reversed the
trial court’s ruling and ordered that Facebook’s and Zuckerberg’s complaint be dismissed
(apparently only as to the moving law firms, not Argentieri).5
       As to the malicious prosecution claim, the New York Appellate Division found
that the allegations concerning the lawyers’ lack of probable cause were conclusory and
thus inadequate to state a claim, noting the authenticity of the Work for Hire Contract
was vigorously contested throughout the Ceglia litigation. The court also looked to the
efforts counsel undertook to ascertain the truth: “Moreover, the DLA-Lippes defendants
conducted a quite thorough investigation after being advised of Kasowitz’s findings,
going so far as subjecting Ceglia to a polygraph test, which he passed. The Kasowitz



5
       The order does not specify whether the complaint was to be dismissed in its
entirety, even though the motion that was the subject of the order was not brought
by Argentieri. Respondents maintain that the case was not dismissed as to
Argentieri. At the hearing on the anti-SLAPP motion, however, Argentieri’s
attorney insisted that the entire case was dismissed. It is unclear why counsel could
not agree on the basic status of the lawsuit between their clients, but the debate on
this point does not affect the outcome of this appeal.
                                          7
letter alone is not sufficient to support a claim that any further representation of Ceglia
was patently unsupported by probable cause.”
       As to the claim under the Judiciary Law, the court concluded that “the allegations
that defendants knew of Ceglia’s fraud are conclusory and not supported by the record.”
The court explained: “Although plaintiffs allege that the DLA-Lippes defendants had
been advised by Kasowitz that the Work for Hire Contract was a forgery prior to the
filing of the amended complaint in the Ceglia action on April 11, the record
unequivocally shows that the Kasowitz letter to that effect was dated April 13, two days
after the amended complaint was filed. There is nothing to indicate that this information
had been communicated to the defendants prior to the issuance of that letter. Moreover,
plaintiffs offer no support for their claim that defendants had actual knowledge of the
fraudulent nature of the claim based on statements made to them by Ceglia. In fact, the
opposite is true. As noted, Ceglia consistently maintained that the Work for Hire
Contract was genuine and even passed a polygraph test covering the contract and his
other claims.”6
       Facebook and Zuckerberg moved for reconsideration of the appellate division’s
ruling, and their motion was denied. They thereafter petitioned the New York Court of
Appeals for review; according to the parties, that petition was still pending as of the time
of the appellate briefing in this case.
       C. This Litigation
       In October 2015, Argentieri filed a “Verified Complaint for Damages for
Defamation Per Se/Libel On Its Face” against Facebook, Zuckerberg, and Stretch in San
Francisco Superior Court.
       Argentieri’s complaint asserts a single cause of action for defamation per se, based
on the Statement issued by Stretch. According to the complaint, Stretch’s Statement was
6
       Argentieri does not claim to have conducted the investigation undertaken by DLA
Piper and Lippes, and the court did not make any findings regarding Argentieri’s
knowledge or whether a claim was stated against him specifically.
                                           8
made “to the public and the press” and was “published worldwide about [Argentieri] and
the other lawyers” who were named as defendants in the malicious prosecution action.
Although Argentieri was not explicitly named in the Statement, the Statement was
nonetheless made about him and was so understood by those who read it. Argentieri
further alleged that the portion of the Statement representing that “ ‘the other named law
firms [which includes Plaintiff] knew the [Ceglia Action] was based on forged documents
yet they [including Plaintiff] pursued it anyway’ ” was untrue and defamatory on its face.
In addition, Argentieri alleged that forensic scientists had concluded the Work for Hire
Contract was authentic and that Ceglia had passed a polygraph test (on June 2011)
indicating no deception. Attached to the complaint were copies of articles from the New
York Times and Reuters including Stretch’s Statement.
       Respondents filed a special motion to strike Argentieri’s defamation complaint
under the anti-SLAPP statute (Code Civ. Proc., § 425.16). Respondents urged that
Stretch’s Statement was within the scope of the statute’s protection, and that Argentieri
could not demonstrate a probability of prevailing on his defamation claim because, inter
alia, the claim was barred by the litigation privilege of Civil Code section 47, subdivision
(b), and Argentieri could not prove defamation because Stretch’s Statement constituted
an opinion rather than an actionable statement of fact and was in any event true.
Respondents did not raise the fair and true reporting privilege set forth in Civil Code
section 47, subdivision (d).
       Argentieri opposed the special motion to strike, contending that the Statement was
not protected activity and that he could show a probability of prevailing on the merits,
because the litigation privilege did not apply and the Statement was actionable and
untrue. Argentieri submitted a declaration averring that he did not know or have reason
to know Ceglia’s documents and lawsuit were fraudulent and maintaining that the “great
weight” of the evidence supports the documents’ authenticity. He also presented reports
from forensic document examiners and other evidence that had been submitted to the

                                          9
New York Appellate Division, which had dismissed the malicious prosecution complaint.
In addition, Argentieri filed a request for the trial court to take judicial notice of the New
York court’s order (which the trial court granted).
       After a hearing, the trial court issued a written order on February 16, 2016,
granting respondents’ motion to strike Argentieri’s complaint. The court concluded that
Stretch’s Statement constituted protected activity under the anti-SLAPP statute because it
was “made in connection with an issue under consideration or review by a . . . judicial
body.” The court then determined that Argentieri failed to establish a probability of
prevailing on the merits of his defamation claim, because (1) the litigation privilege (Civ.
Code, § 47(b)) and the fair and true reporting privilege (Civ. Code, § 47(d)) applied to
Stretch’s Statement;7 and (2) the part of the Statement asserting that Ceglia’s counsel
“should be held to account” constituted a non-actionable opinion, and the part of the
Statement declaring that “[w]e said from the beginning that Paul Ceglia’s claim was a
fraud and that we would seek to hold those responsible accountable” could not be found
to be false.
       This appeal followed.
                                     II. DISCUSSION
       Code of Civil Procedure section 425.16 (section 425.16) authorizes a defendant to
file a special motion to strike when a cause of action arises from an act in furtherance of
the defendant's constitutional right of petition or free speech in connection with a public
issue.8 The purpose is to curb the chilling effect that certain litigation may have on the


7
        The court’s order seems to conflate the litigation privilege of Civil Code
section 47, subdivision (b) and the fair and true reporting privilege of Civil Code
section 47, subdivision (d), or treat both statutory subdivisions as part of the
litigation privilege. Our analysis will address the privileges independently.
8
        In pertinent part, section 425.16 provides: “(b)(1) 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
                                           10
valid exercise of free speech and petition rights, and the statute is to be interpreted
broadly to accomplish that goal. (§ 425.16, subd. (a).)
       There are two prongs to the analysis under the anti-SLAPP statute. First, the
defendant must make a threshold showing that the plaintiff's cause of action arises from
the defendant's free speech or petition activity, as specified in the statute. (§ 425.16,
subds. (b) & (e).) Second, if the defendant has made that showing, the burden shifts to
the plaintiff to establish, by admissible evidence, a probability of prevailing on the claim.
If the plaintiff fails to do so, the motion to strike is granted and the prevailing defendant
is entitled to recover his or her attorney fees and costs. (§ 425.16, subd. (c); Wallace v.
McCubbin (2011) 196 Cal.App.4th 1169, 1181 (Wallace), disapproved on another ground
in Baral v. Schnitt (2016) 1 Cal.5th 376, 396, fn. 11.)
       Argentieri does not contest the trial court’s finding on the first prong of the anti-
SLAPP analysis—that Stretch’s Statement constitutes protected activity within the
meaning of the statute. The issue, therefore, is whether the court erred in concluding that
Argentieri has no probability of success on the merits, either because Stretch’s Statement
is privileged or because it cannot be the basis of a defamation action for other reasons.
We review de novo. (Wallace, supra, 196 Cal.App.4th at p. 1181.)




court determines that the plaintiff has established that there is a probability that the
plaintiff will prevail on the claim. [¶] (2) In making its determination, the court shall
consider the pleadings, and supporting and opposing affidavits stating the facts upon
which the liability or defense is based.” (§ 425.16, subd. (b)(1), (2).)
                                           11
       A. Litigation Privilege: Civil Code Section 47(b)
       Under subdivision (b) of Civil Code section 47 (section 47), the litigation privilege
protects any “publication or broadcast . . . made . . . in any . . . judicial proceeding.” The
privilege is absolute and precludes a claimant from establishing a probability of
prevailing on the merits of his claim. (Kashian v. Harriman (2002) 98 Cal.App.4th 892,
926 (Kashian).)
       The litigation privilege generally applies to “any communication (1) made in
judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by
law; (3) to achieve the objects of the litigation; and (4) that have some connection or
logical relation to the action.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212 (Silberg).)
The privilege pertains not only to statements made during a trial, but also to steps taken
before trial and statements made “to achieve the objects of the litigation, even though the
[statement] is made outside of the courtroom and no function of the court or its officers is
invoked.” (Albertson v. Raboff (1956) 46 Cal.2d 375, 381.) The privilege is intended to
“afford litigants and witnesses . . . the utmost freedom of access to the courts without fear
of being harassed subsequently . . . . [¶] [with] protracted and costly lawsuits.” (Silberg,
supra, 50 Cal.3d at pp. 213–214.)
              1. Abraham
       The trial court in this case concluded, and respondents urge, that Abraham v.
Lancaster Community Hospital (1990) 217 Cal.App.3d 796 (Abraham) indicates the
litigation privilege should apply here. We disagree.
       In Abraham, hospital LCH filed a complaint in federal court alleging antitrust
violations and torts against another hospital and certain health care plans. (Abraham,
supra, 217 Cal.App.3d at p. 801.) LCH sought leave to file a proposed amended
complaint, which alleged that a hospital administrator (Abraham) was involved in the
defendants’ wrongdoing and named him as a defendant; the actual amended complaint
that was eventually filed did not name Abraham as a party, but alleged he was a co-

                                           12
conspirator and set forth his purported wrongdoing. (Id. at p. 805.) Abraham sued for
defamation, on the ground he had been named as a defendant in the proposed amended
complaint in which he was accused of a wide variety of unlawful and criminal acts, these
allegations were caused to be “published in the local press,” and they were disseminated
by word of mouth “in the Antelope Valley and specifically within the medical
community there.” (Id. at pp. 805–806.)
       The court in Abraham spent much of its analysis concluding that the litigation
privilege is absolute and unaffected by whether the speaker acted with malice.
(Abraham, supra, 217 Cal.App.3d at pp. 813–822.) It also noted that Abraham’s
defamation claim was based on statements clearly made in connection with the pending
federal litigation and was directly related to the issues raised by the pleadings, since the
statements asserted his involvement in the schemes alleged in the complaint. (Id. at pp.
822–823.) The court then concluded that the purported defamatory statements were
covered by the litigation privilege. (Id. at pp. 823–824.)
       As to the communication to the local newspaper, the court first noted that the
publications in the Antelope Valley Press were undisputedly accurate reports of the
contents of the federal pleadings and were thus privileged as a fair and true report of a
judicial proceeding under then subdivision 4 of section 47 (now § 47, subd. (d)); based on
this finding, the court held that the litigation privilege applied to the communication to
the newspaper: “Since both the pleadings in the federal court and publication in the press
of a fair and true report of the pleadings are absolutely privileged, it would defeat the
purpose of [former] section 47, subdivisions 2 and 4 to punish the transmittal of the
privileged pleadings to the press.” (Abraham, supra, 217 Cal.App.3d at p. 823, italics
added.)
       As to the alleged communication of the allegations by word of mouth within the
Antelope Valley and the medical community, the court in Abraham found the
communications privileged because the local medical community possessed a substantial

                                           13
interest in the outcome of the pending litigation and “as such were ‘participants’ therein,”
and otherwise there would be a chilling effect on the public’s discussion of pending
litigation. (Abraham, supra, 217 Cal.App.3d at p. 823.) In this context, the court
observed, “[i]t would be anomalous to hold that a litigant is privileged to make a
publication necessary to bring an action but that he can be sued for defamation if he lets
anyone know that he has brought it. [Citation.]” (Id. at pp. 823–824; but see Shahvar v.
Superior Court (1994) 25 Cal.App.4th 653, 660–661 (Shahvar).)
       Respondents argue that Stretch’s Statement “merely echoed and summarized” the
allegations of the malicious prosecution complaint and is therefore privileged under
Abraham. But Abraham is not directly on point. In Abraham, the statement to the press
was the proposed pleading—a “publicly available judicial document on which the press
was privileged to report.” (Susan A. v. County of Sonoma (1991) 2 Cal.App.4th 88, 96
(Susan A.); see Abraham, supra, 217 Cal.App.3d at p. 823.) By contrast, Stretch did not
merely send the malicious prosecution complaint to the press, but emailed a press release.
To consider whether this makes a difference, we turn to cases decided since Abraham,
which hold that statements to the press will generally not be privileged under section 47,
subdivision (b).
              2. The Press Lacks a Substantial Interest In the Subject Matter
       In Susan A., supra, 2 Cal.App.4th 88, a psychologist interviewed a 14-year-old
boy accused of attempted murder at defense counsel’s request, and later made statements
about the boy to the press. (Id. at p. 92.) The court held that the psychologist’s
statements to the news media were not covered by the litigation privilege, because “the
privilege does not apply where publication is to persons in no way connected with the
proceeding.” (Id. at p. 93.) Noting that cases had expanded the scope of section 47,
subdivision (b) to include publication to nonparties with a substantial interest in the
proceeding, the court concluded that this “expansion does not encompass publication to
the general public through the press.” (Id. at p. 94.) “Such an expansion would swallow

                                          14
up the general rule, which our Supreme Court recently reaffirmed, that section 47(b) does
not privilege ‘republications to nonparticipants in the action . . . .’ ([Silberg], supra, 50
Cal.3d at p. 219.)” (Ibid.)
       To similar effect is GetFugu, Inc. v. Patton Boggs LLP (2013) 220 Cal.App.4th
141 (GetFugu). There, the Attorney Defendants had filed, on behalf of their clients, a
lawsuit alleging racketeering and other claims against GetFugu, Inc., Carl Freer, and
another individual. (Id. at pp. 144–145.) The Attorney Defendants had also issued two
written statements—a press release and a tweet—to publicize the alleged misdeeds of
GetFugu, Inc., and Freer. The press release asserted, among other things, that the FBI
was conducting a criminal investigation of Freer independent of the civil RICO suit. (Id.
at pp. 145–146, 152.) The tweet, issued after the lawsuit was dismissed by the court,
insisted that the racketeering suit was not frivolous. (Id. at p. 146.) Upon the dismissal
of the racketeering complaint, GetFugu, Inc., and Freer filed a lawsuit against the
Attorney Defendants for malicious prosecution and defamation based on the press release
and, as later amended, the tweet. (Id. at p. 147.) The Attorney Defendants filed an anti-
SLAPP motion to strike, contending inter alia that the plaintiffs had no probability of
prevailing on their claims because the press release and tweet were protected by the
litigation privilege. The appellate court disagreed, concluding inter alia that the statement
to the press was not privileged because it was not sent to persons with a “substantial
interest” in the malicious prosecution case, and the litigation privilege “does not
encompass publication to the general public through the press.” (Id. at p. 153.)
       Here, Stretch’s Statement was emailed to the press, not to a group with a
substantial interest in the malicious prosecution case. According to respondents’
memorandum in support of their anti-SLAPP motion, the Statement was released to a
“targeted set of journalists who had been closely following Ceglia’s fraudulent lawsuit.”
But the interest of these journalists arose not because the malicious prosecution case
actually affected them, but because they could report the case to the public. Indeed, as

                                           15
evinced by attachments to Argentieri’s verified complaint, respondents sent the Statement
to the New York Times, Reuters, and others, who in turn broadcast it to readers. And
certainly that was the expectation—in fact, the goal—of Stretch’s Statement: as
respondents assert in their brief in this appeal, they issued the Statement to “set[] the
public record straight” and recounted the allegations “in terms that were appropriate for a
general public audience.” (Italics added.) In short, Stretch’s communication of the email
to major news outlets was a publication to the general public through the press and
therefore not protected by the litigation privilege.9
       We recognize that Stretch’s Statement (summarizing a pleading on the day it was
filed) is closer factually to the act in Abraham (delivering a proposed pleading to the
press) than to the acts in Susan A. (non-party disclosing confidential information gained
from an interview) and GetFugu (commenting about a separate legal proceeding). The
salient question, however, is not how far the act is from delivering a pleading to the press,
but whether the act meets the requirements for the litigation privilege, in light of the long-
standing stricture that the litigation privilege will not protect statements that are made to
persons who lack a substantial interest in the litigation. (Susan A., supra, 2 Cal.App.4th
at p. 94; GetFugu, supra, 220 Cal.App.4th at p. 153; see Abuemeira v. Stephens (2016)
246 Cal.App.4th 1291, 1299 (Abuemeira) [“the litigation privilege does not apply to
publications to the general public through the press”]; Rothman v. Jackson (1996) 49
Cal.App.4th 1134, 1141, 1149 (Rothman) [noting that “[s]tatements to nonparticipants in
the action are generally not privileged under section 47, subdivision (b),” and holding


9
       In their anti-SLAPP motion, respondents did not provide a citation to the record to
support their assertion that the Statement was sent to a targeted set of journalists. For this
reason as well, respondents failed to assert admissible evidence that the Statement was
emailed to persons with a substantial interest. At the anti-SLAPP hearing, respondents’
counsel asserted that “as a publicly traded company, Facebook really had a responsibility
to communicate with its stakeholders.” But respondents present no authority that a
statement issued to the press becomes privileged merely because company
stakeholders—along with everyone else—might end up seeing it.
                                           16
that the litigation privilege should not be extended to “ ‘litigating in the press’ ” because
“it would serve no purpose but to provide immunity to those who would inflict upon our
system of justice the damage which litigating in the press generally causes: poisoning of
jury pools and bringing disrepute upon both the judiciary and the bar”].) To the extent
Abraham holds the delivery of a pleading to the press is protected by the litigation
privilege, we view it as a specific and limited exception to the general rule.
       Indeed, the vitality of Abraham even as to the communication of an actual
pleading is in doubt, as indicated by a decision issued decades ago. In Shahvar, supra, 25
Cal.App.4th 653, the court flat out disagreed with Abraham that the litigation privilege
protected the communication of a pleading to a newspaper. In that case, Shahvar had his
lawyer fax a copy of an unfiled civil complaint, which contained false allegations of
defendants’ wrongdoing, to a newspaper that published an article summarizing the
allegations. (Id. at p. 656.) Shahvar filed the complaint with the court, and the
defendants filed a cross-complaint for libel based on the delivery of the complaint to the
newspaper. (Id. at pp. 657–658.) The court held that the communication of the
complaint to the newspaper was not covered by the litigation privilege, because the
newspaper was not related to the litigation. (Id. at p. 658.) Specifically, the court
observed, “statements about existing or anticipated litigation by a party or the party’s
attorney to the news media, when the news media is neither a party to nor a participant in
the litigation, are not privileged.” (Id. at p. 659.) The court further explained that, to the
extent Abraham had ruled the transmittal of a pleading to the press was covered by the
litigation privilege, “Abraham’s conclusions are unsupported by case law, policy, or
statute.” (Id. at pp. 660–662.)
       Not only does Shahvar cast doubt on Abraham, the California Legislature’s
response to Shahvar did nothing to support the idea that the delivery of a pleading to the
press was subject to the litigation privilege. Senate Bill No. 1540 was introduced to
“resolve [the conflict between Shahvar and Abraham] by clarifying the circumstances

                                           17
under which persons who inform the press about what has taken place in an official
proceeding are protected by an absolute privilege.” (SB 1540, Assembly Committee on
Judiciary, hearing of July 10, 1996, p. 4.) Rather than addressing the issue under the
litigation privilege of section 47, subdivision (b), the legislature opted to expand the fair
and true reporting privilege of section 47, subdivision (d) so that it would cover not just a
report in a public journal, but also a report of pleadings and other court documents to a
public journal. (Ibid.) As a result, effective January 1, 1997, the fair and true reporting
privilege pertains to “a fair and true report in, or a communication to, a public journal” of
judicial and other proceedings. (§ 47, subd. (d); see Stats. 1996, ch. 1055, § 2, p. 6641;
Rothman, supra, 49 Cal.App.4th at pp. 1144–1145, fn. 3.)
       We will examine post how the fair and true reporting privilege applies to Stretch’s
Statement; but for now we must conclude that the Statement was not subject to the
litigation privilege because it was sent to the press, and consider next an additional reason
the litigation privilege does not apply.
              3. Necessary or Useful Step In the Litigation Process
       For the litigation privilege to apply, there must be a sufficient nexus between the
statement and the litigation. Specifically, the statement must “achieve the objects of the
litigation,” which requires that it “be connected with, or have some logical relation to the
action.” (Silberg, supra, 50 Cal.3d at pp. 212, 219–220.) It therefore must “function as a
necessary or useful step in the litigation process and . . . serve its purposes.” (Rothman,
supra, 49 Cal.App.4th at p. 1146, italics added.) “This is a very different thing from
saying that the communication’s content need only be related in some way to the subject
matter of the litigation.” (Kashian, supra, 98 Cal.App.4th at p. 920.)
       In Rothman, an attorney was retained by a boy’s father to seek redress against
Michael Jackson for torts he allegedly committed against the boy; before any lawsuit was
filed, the attorney began negotiating with Jackson. (Rothman, supra, 49 Cal.App.4th at p.
1138.) A psychological evaluation of the boy was leaked, containing “sensational”

                                           18
charges. (Id. at p. 1138.) Jackson and others called a press conference, and later made
additional statements to the media, in which Jackson not only denied the charges but also
made countercharges that the lawyer and his clients had knowingly and intentionally
made false accusations against Jackson in order to extort money from him. (Id. at p.
1139.) Rothman sued for defamation and other torts; the trial court sustained Jackson’s
demurrer to the complaint on the ground of the litigation privilege. (Id. at p. 1139.)
       On appeal, the Rothman court held that the litigation privilege did not apply. After
surveying the relevant law, the court concluded that, to be sufficiently in furtherance of
the litigation, the communication must “function intrinsically, and apart from any
consideration of the speaker’s intent, to advance a litigant’s case,” noting examples such
as the actual pleadings, a lis pendens, demand letters and communications directed
towards settlement, communications between a law firm and persons with potential
claims, and investigatory interviews. (Rothman, supra, 49 Cal.App.4th at p. 1148, italics
added.) The statements made to the press to vindicate Jackson did not advance any
litigation and, therefore, were not protected by the litigation privilege. (Id. at p. 1149.)
       The facts in Rothman are different than the facts in this case, since in Rothman the
statements were made to the press in connection with litigation that was merely
threatened or anticipated, while Stretch’s Statement was made to the press in connection
with the lawsuit that had just been filed. But the essential point remains: the litigation
privilege does not insulate statements that do not further the objects of the litigation.
       Here, the evidence does not indicate that the Statement was a useful step in the
process of the malicious prosecution action. Respondents argue it was useful in
furthering the ultimate goal of the lawsuit, which was to set the public record straight
regarding the Ceglia fraud and to hold accountable the lawyers who had “tried to extort
Facebook through an abuse of the judicial system [that was] designed to call into public
question the true ownership of Facebook.” But that is nothing more than saying they
wanted the world to know their view of the dispute—which does not further the litigation

                                           19
itself. A desire to vindicate a client does not constitute the type of furtherance or
connection sufficient for the litigation privilege to apply. (Rothman, supra, 49
Cal.App.4th at p. 1147 [noting that the fact the statements were “intended to vindicate
Jackson” was insufficient: “While a person’s motives for litigating a dispute may include
a desire to be vindicated in the eyes of the world—a result which the litigation may
achieve—this is not what is meant by the term ‘objects of the litigation’ ”].)
       In the final analysis, based on the record presented to the trial court in the anti-
SLAPP proceedings, the litigation privilege of section 47, subdivision (b) does not
preclude Argentieri from showing a probability of prevailing on his defamation claim.
       B. Fair and True Reporting Privilege: Civil Code Section 47(d)
       Under section 47, subdivision (d), the fair and true reporting privilege protects a
“fair and true report in, or a communication to, a public journal, of . . . a judicial . . .
proceeding, or anything said in the course thereof.” It too is an absolute privilege—that
is, it applies regardless of the defendants’ motive for making the report—and forecloses a
plaintiff from showing a probability of prevailing on the merits. (J-M Manufacturing
Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87, 98 (J-M).)
       Argentieri contends the trial court erred in its reliance on the fair and true
reporting privilege because (1) respondents had not asserted the privilege in their motion
to strike and Argentieri was thus deprived of due process, and (2) the record does not
support the application of the privilege in this case. After a brief summary of the
privilege, we turn to those arguments.
               1. Law
       Unlike the litigation privilege, the fair and true reporting privilege pertains
specifically to communications to the press, and it requires that the report be fair and true,
not that it actually further the underlying litigation. (§ 47, subd. (d).)
       To be “ ‘fair and true,’ ” the report must “ ‘[capture] the substance, the “gist” or
“sting”, of the subject proceedings’ ” as measured by considering the “ ‘ “natural and

                                             20
probable effect [of the report]” ’ ” “ ‘ “on the mind of the average reader.” ’ ” (Braun v.
Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1050, fn. 6.) The defendant is
entitled to a certain degree of “flexibility/literary license” in this regard, such that the
privilege will apply even if there is a slight inaccuracy in details—one that does not lead
the reader to be affected differently by the report than he or she would be by the actual
truth. (J-M, supra, 247 Cal.App.4th at pp. 99–100.)
              2. Due Process
       Argentieri argues that the trial court, by deciding the matter based on the fair
reporting privilege, violated his due process rights to notice and an opportunity to be
heard. (Citing Fuentes v. Shevin (1972) 407 U.S. 67, 80; Ryan v. California
Interscholastic Federation-San Diego Section (2001) 94 Cal.App.4th 1048, 1069.)
       As a threshold matter, Argentieri provides no legal authority for his proposition
that the trial court, in assessing whether a plaintiff has a probability of prevailing on his
claim, is prohibited from considering an applicable privilege supported by the evidence
the parties presented, merely because the parties did not bring the privilege itself to the
court’s attention. Indeed, the primary precedent on which respondents were basing their
motion—Abraham—flagged the existence of the fair and true reporting privilege, since it
observed that a statement in the press was protected by that very privilege; a glance at the
current corresponding code section would have indicated the possible relevance of the
reporting privilege to this case as well. In our view, the potential application of section
47, subdivision (d) is rather obvious, since it explicitly pertains to reports in the press
about judicial proceedings, which is precisely what Stretch’s Statement was.
       At any rate, while Argentieri contends the court’s reliance on subdivision (d) of
section 47 was prejudicial, he does not claim it was prejudicial because he would have
presented any different or additional evidence if he had been aware the privilege was in
play. Instead, he contends he would have made the legal arguments he now makes in this
appeal. Specifically, he complains that respondents were not required to explain in the

                                            21
trial court how the privilege applied and that Argentieri was not “given the opportunity”
to “me[e]t any argument[s]” on this point. He maintains, for example, that if the issue
had been raised by respondents, he would have argued that Stretch’s categorical
statement that the lawyers knew of the fraud was not a fair and true report of the
equivocal allegations in the malicious prosecution complaint that the lawyers “knew or
should have known” of the fraud and other allegations that had been made on
“information and belief.” Presumably, Argentieri would have raised in the trial court all
of the other arguments he raises in his appellate briefs as well.
       Accordingly, we need not decide this appeal based on the constitutional due
process issue. If Argentieri’s legal arguments are correct and the fair and true reporting
privilege does not apply, we would reverse the judgment on that ground, whether or not
Argentieri had a due process opportunity to make those arguments in the trial court. On
the other hand, if Argentieri’s legal arguments are incorrect and the reporting privilege
does apply, not only was the trial court right to conclude the Statement is privileged
under section 47, subdivision (d), Argentieri was not harmed by the absence of his legal
arguments in the court below.
       We therefore turn to the merits of Argentieri’s arguments.10
              3. Applicability of Section 47, Subdivision (d)
       There is no dispute that Stretch’s Statement was a report or communication to a
“public journal” concerning the malicious prosecution action against Argentieri and

10
       Argentieri contends in his reply brief that, by not asserting the fair and true
reporting privilege in the trial court, respondents waived it and the trial court should not
have raised it for them. He informs us that a defendant’s “failure to plead and prove a
defense in the trial court precludes the defendant from raising the defense in the appellate
court.” (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 907.) But his argument misses
the mark. First, contentions raised for the first time in a reply brief will not be considered
without a showing of good cause. (REO Broadcasting Consultants v. Martin (1999) 69
Cal.App.4th 489, 500.) Second, at issue here is not whether an affirmative defense was
waived by omitting it from an answer, but whether Argentieri met his burden under the
anti-SLAPP statute to demonstrate a probability of prevailing on the merits.
                                           22
others. Moreover, in context, Stretch’s Statement was a “fair and true” report of that
proceeding. It essentially asserted that respondents sought to hold accountable the named
lawyers for Ceglia because they knew Ceglia’s case was based on the forged Work for
Hire Contract. And that was the gist of their malicious prosecution action as well.
Argentieri’s arguments to the contrary are unavailing.
                      a. Statement was Different Than The Complaint’s Allegations
       Argentieri argues that Stretch’s Statement is not a fair and true report of the
malicious prosecution action because the Statement claims Argentieri and others knew
the case was based on forged documents, while the malicious prosecution complaint
alleged that the lawyers knew or should have known that the lawsuit was a fraud.
Argentieri also points out that many of the allegations in the malicious prosecution
complaint were made on information and belief. Basically, Argentieri maintains that the
Statement more definitively asserted his knowledge of Ceglia’s purported fraud than did
the allegations the Statement purported to report.
       We find Argentieri’s argument unpersuasive. There is, of course, a legal
distinction between one who knew about a forgery and one who knew or should have
known about it, and there is also a difference between asserting something as a fact and
alleging it on information and belief. But in determining the applicability of the fair and
true reporting privilege, “[t]he report is not to be judged by the standard of accuracy that
would be adopted if it were the report of a professional law reporter or a trained lawyer.”
(Burrill v. Nair (2013) 217 Cal.App.4th 357, 398 (Burrill), disapproved on another
ground in Baral v. Schnitt, supra, 1 Cal.5th at p. 396, fn. 11.) It is sufficient if the
statement conveys the “gist” of the action, as measured by “how those in the community
where the matter was published would reasonably understand it.” (Ibid.) Here, both the
malicious prosecution action and Stretch’s Statement asserted that Ceglia’s lawyers knew
the Work for Hire Contract was forged; the fact that the malicious prosecution action also
left open the possibility that the lawyers merely should have known of the fraud, or made

                                            23
some of the allegations on information and belief, does not make Stretch’s Statement so
great a distortion as to render it unfair or untrue for purposes of section 47, subdivision
(d). (See, e.g., Carver v. Bonds (2005) 135 Cal.App.4th 328, 351 [the “ ‘fair and true’
requirement ‘does not limit the privilege to statements that contain no errors,’ ” and a
statement about ongoing litigation “need not track verbatim the underlying proceeding,”
because “[o]nly if the deviation is of such a “substantial character” that it “produces a
different effect” on the reader will the privilege be suspended”]; Microsoft Corp. v.
Yokohama Telecom Corp. (C.D. Cal. 1998) 993 F.Supp. 782, 784 [corporation’s “paid
announcement” in a national media publication was a fair and true reporting of a civil
lawsuit because it generally “capture[d] the substance of . . . the proceedings”].)
                     b. Dismissal of Argentieri’s Co-Defendants
       Argentieri next emphasizes the decision of the New York Appellate Division,
which dismissed the malicious prosecution claim against other attorneys who had
represented Ceglia. That decision, however, has no bearing on whether the Stretch
Statement was a fair and true report of the malicious prosecution action.
       In the first place, the Stretch Statement reported the allegations of the malicious
prosecution complaint; the fact that the court later found those allegations insufficient to
state a claim against some of Ceglia’s lawyers does not mean that Stretch’s Statement did
not accurately report what the allegations were.
       Furthermore, while the New York Appellate Division concluded that the pleading
did not state a claim for malicious prosecution or deceit against Ceglia’s other lawyers, it
did not decide whether the allegations were sufficient to hold Argentieri liable. The New
York court made no findings regarding Argentieri’s knowledge of Ceglia’s fraud. In fact,
the court reached its conclusions in part due to the efforts taken by the other attorneys to
investigate the authenticity of the Work for Hire Contract and Ceglia’s claims, and there
is no allegation that Argentieri undertook the same or similar investigation. We also
note, as did the New York court, that the other attorneys were notified by Kasowitz of its

                                          24
suspicions after Ceglia’s amended complaint had been filed, while Argentieri was
repeatedly advised of Kasowitz’s concerns before it was filed. The New York court’s
findings and order as to Ceglia’s other attorneys do not evince any unfairness or
untruthfulness in Stretch’s report of the allegations as to Argentieri.
                      c. Court or Jury Question
       Argentieri further contends it was for a jury, not the trial court, to decide whether
Stretch’s Statement was a fair and true report. Courts have stated that the fairness and
truth of a report is an issue of fact for the jury, if there is any material factual dispute on
the issue. (See Burrill, supra, 217 Cal.App.4th at p. 399 [whether report is fair and true
is for the jury to determine if there is a question of fact as to whether the average listener
would understand the communication captured the gist of the complaint]; J-M, supra, 247
Cal.App.4th at pp. 98–99 [whether report is “fair and true” is a question of fact and,
provided reasonable minds could disagree on that point, a question for the jury].)
       Here, in our de novo review, we find no genuine issue of material fact as to the
content of Stretch’s email to the press, the content of the malicious prosecution action, or
whether an average reader would understand Stretch’s Statement to be a fair and true
report of the gist of the malicious prosecution action. Argentieri fails to show error.
                      d. Burrill and the Second Restatement of Torts
       Argentieri additionally points us to Burrill, supra, 217 Cal.App.4th 357. There, a
counselor had concluded in child custody proceedings that one of the parents was
emotionally and psychologically abusing the child and presented a threat. The parent lost
custody of the child, and then allegedly made statements online and over the radio that
accused the counselor of crimes, child abuse, financial extortion, and practicing
psychology and prescribing drugs without a license. (Id. at pp. 364–365.) The counselor
filed a lawsuit against the parent for defamation. The parent filed an anti-SLAPP motion
to strike the complaint, which the trial court denied. (Id. at pp. 376–377.) The court of
appeal affirmed, finding that the counselor had demonstrated a probability of prevailing

                                            25
on the defamation claim, in part because the parent’s statements on the radio were not
subject to the fair and true reporting privilege. (Id. at p. 396.)
       In reaching this decision, the court in Burrill concluded that the radio interview, in
which the parent purported to recount a citizen complaint the parent had lodged, was not
a report of a “judicial” or “other public official proceeding” within the meaning of section
47, subdivision (d). Basing its conclusion on the Restatement Second of Torts, the court
stated, “[A]s the Restatement Second of Torts, section 611, comment e, page 300
explains: ‘A report of a judicial proceeding implies that some official action has been
taken by the officer or body whose proceedings are thus reported. The publication,
therefore, of the contents of preliminary pleadings such as a complaint or petition, before
any judicial action has been taken is not within the rule stated in [Section 611]. An
important reason for this position has been to prevent implementation of a scheme to file
a complaint for the purpose of establishing a privilege to publicize its content and then
dropping the action. (See Comment c).’ ” (Burrill, supra, 217 Cal.App.4th at 397.) As
Burrill set forth in a footnote, “Comment c to this section provides in relevant part: ‘A
person cannot confer this privilege upon himself by making the original defamatory
publication himself and then reporting to other people what he had stated. This is true
whether the original publication was privileged or not.’ [Citation.]” (Burrill, supra, 217
Cal.App.4th at p. 397, fn. 6.) Because no action had been taken with respect to the
parent’s citizen complaint, the parent’s radio interview was not a report of a judicial or
official proceeding. (Id. at p. 397.)11
       Based on Burrill, Argentieri suggests that the fair and true reporting privilege does
not apply to a report of a mere pleading in a lawsuit by the party who filed the lawsuit,


11
        The Restatement Second of Torts, section 611, provides: “The publication of
defamatory matter concerning another in a report of an official action or proceeding
or of a meeting open to the public that deals with a matter of public concern is
privileged if the report is accurate and complete or a fair abridgement of the
occurrence reported.” (Rest. (Second) of Torts § 611, at p. 297 (1977).)
                                           26
and therefore it should not apply to Stretch’s Statement about the malicious prosecution
action brought by Facebook and Zuckerberg. He speculates that, given the likelihood the
malicious prosecution action was going to be dismissed at its inception, respondents were
motivated to file the lawsuit and immediately publicize it through the press in order to fill
the public’s mind with respondents’ version of the facts and their implicit threat that any
lawyer who dares to sue Facebook or Zuckerberg will risk getting sued.
       Burrill is distinguishable from the matter at hand. First, Burrill concerned a citizen
complaint that the defendant had merely lodged with law enforcement, and which law
enforcement had not acted upon. (Burrill, supra, 217 Cal.App.4th at 396.) Here, by
contrast, the pleading Stretch summarized had been filed with the court to commence an
official judicial proceeding. (See Healthsmart Pacific, Inc. v. Kabateck (2016)
7 Cal.App.5th 416, 432 (Healthsmart Pacific) [“judicial proceeding,” within the meaning
of § 47, subd. (d), includes the filing of a complaint].) Second, Burrill concerned a report
made by the complainant. Here, by contrast, the Statement was made by Stretch, the
attorney for Facebook and Zuckerberg. And while Argentieri alleges that Stretch was
acting on the other respondents’ behalf, an attorney’s summary of a pleading he filed to
commence a judicial proceeding is materially different than an individual’s discussion of
a citizen complaint she herself had lodged with law enforcement. (Ibid.)
       Furthermore, while the comments to section 611 of the Restatement Second of
Torts may have supported the conclusion in Burrill based on the facts presented in that
case, they have no authority in this case. The fair and true reporting privilege in
California is a creation of statute—namely section 47, subdivision (d)— and in
interpreting that statute we are not bridled by the Second Restatement of Torts, which
summarizes general principles of common law. On its face, section 47, subdivision (d)
pertains to reports of a “judicial proceeding”—which has long been held to include the
filing of a complaint—not to reports of a “judicial proceeding except for pleadings that
are filed in a judicial proceeding.” Moreover, as discussed ante, the legislative history of

                                          27
section 47, subdivision (d) makes it clear that our legislature fully intended to protect as
privileged an attorney’s communication of a complaint to a newspaper on behalf of his
client (as occurred in Shahvar). And while Stretch made a statement summarizing the
complaint rather than delivering the complaint itself, it would be anomalous to hold
privileged the delivery to the press of the complaint—with its extended and more detailed
allegations of Argentieri’s purported wrongdoing—but not the delivery to the press of a
mere summary that succinctly sets forth its gist. (See Healthsmart Pacific, supra, 7
Cal.App.5th at pp. 432–434.)
                     e. Rules of Professional Conduct
       Section 47, subdivision (d)(2)(A) provides that a communication to a public
journal is not subject to the privilege if it “[v]iolates Rule 5-120 of the State Bar Rules of
Professional Conduct.” In turn, rule 5-120(A) states: “A member who is participating or
has participated in the investigation or litigation of a matter shall not make an
extrajudicial statement that a reasonable person would expect to be disseminated by
means of public communication if the member knows or reasonably should know that it
will have a substantial likelihood of materially prejudicing an adjudicative proceeding in
the matter.” (Italics added.)
       Argentieri asserts that rule 5-120 applies to in-house counsel such as Stretch. (See
Cal. Rules of Court, rule 9.46 (c)(6).) He further contends Stretch knew or should have
known that the Statement had a substantial likelihood of materially prejudicing the
malicious prosecution case, because of the inherent dangers and improprieties of
litigating in the press. (See, e.g., Susan A., supra, 2 Cal.App.4th at pp. 95–96 [“ ‘[t]rial
by press’ ” is “ ‘forbidden to counsel and subversive of the fair and orderly conduct of
judicial proceedings’ ”]; Abuemeira, supra, 246 Cal.App.4th at p. 1299 [litigating in the
press “serves no purpose other than to provide immunity to those who would inflict
damage upon the judiciary”]; Rothman, supra, 49 Cal.App.4th at p. 1149 [litigating in the
press leads to poisoning of jury pools and disrepute upon the judiciary and the bar].) In

                                           28
addition, Argentieri points us to respondents’ assertion in their briefing that the Statement
was issued to “set[] the public record straight,” from which he concludes that respondents
emailed the Statement to the media to get the public to prejudge their malicious
prosecution case favorably.
       Argentieri’s argument is meritless. In the first place, he ignores the rest of rule 5-
120. Subdivision (B) of rule 5-120 states: “Notwithstanding paragraph (A), a member
may state: [¶] (1) the claim, offense or defense involved and, except when prohibited by
law, the identity of the persons involved; [¶] (2) the information contained in a public
record; . . . .” (Italics added.) Here, Stretch’s Statement described the claim in the
malicious prosecution action and the gist of the allegations of the publicly-filed
complaint.
       Furthermore, Argentieri does not demonstrate how the evidence submitted to the
trial court shows that Stretch knew or should have known the Statement had a substantial
likelihood of materially prejudicing the malicious prosecution proceeding. The
Statement was issued when the complaint was filed, long before any jury pool was
formed; and it did not set forth any secret information or evidence that Argentieri claims
to be inadmissible, but merely provided an ostensibly fair and true summary of the filed
complaint. (See comment to rule 5-120.)
       In sum, Stretch’s Statement is protected by the fair and true reporting privilege of
section 47, subdivision (d). Accordingly, Argentieri failed to establish a probability of
prevailing on his defamation claim, and the trial court did not err in granting respondents’
anti-SLAPP motion to strike his complaint.12


12
       As mentioned, respondents urge that Argentieri also has no probability of
prevailing on his defamation claim because Stretch’s Statement was a non-actionable
opinion and because Stretch’s assertion—that Argentieri knew Ceglia’s lawsuit was
based on forged documents—was true. Because Argentieri has no probability of
prevailing due to the fair and true reporting privilege, we need not and do not consider
these additional issues.
                                          29
                               III. DISPOSITION
      The order is affirmed.



                                         NEEDHAM, J.




We concur.




JONES, P.J.




BRUINIERS, J.




(A147932)



                                   30
Superior Court of San Francisco County, No. CGC-15-548503, Joseph M. Quinn,
Judge.


Alioto Law Firm, Joseph M. Alioto; Law Offices of Jeffrey Perkins, Jeffrey
Perkins; Messina Law Firm Gil D. Messina for Plaintiff and Appellant.


Gibson, Dunn & Crutcher, Orin S. Snyder, Robert Gonzalez and Adam Yarian for
Defendants and Respondents.




                                        31
