Filed 8/9/17
                           CERTIFIED FOR PUBLICATION

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                     DIVISION TWO


JASON CROSS et al.,
        Plaintiffs and Appellants,
                                                  A148623, A149140
v.
FACEBOOK, INC.,                                   (San Mateo County
                                                  Super. Ct. No. CIV537384)
        Defendant and Appellant.


        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 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.

                                              1
       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 trial court to enter an order granting the anti-SLAPP
motion and striking the complaint.
                                     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 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


                                              2
against 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.‖
       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
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 plaintiff in the third cause of action; and the sixth cause of
action was apparently by all three plaintiffs.1
       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


       1
         The complaint says the cause of action is ―by Both Plaintiffs,‖ but as noted there
are three.
       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

                                              3
          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 Communications Decency Act; 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; Thomas Hairston, senior vice president of
1203 Entertainment; and 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.
          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 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 computer service shall be
treated as the publisher or speaker of any information provided by another information

the order was granted, the Tennessee court holding that Facebook was not the creator of
the content and that the Communications Decency Act (47 U.S.C. § 230)(CDA) barred
the claims.


                                                4
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.
       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 U.S.C. § 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 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 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.




                                                  5
                                       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 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
(Hecimovich):
       ―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
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 (Navellier).)
       ― ‗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 where the trial court evaluates the merits of the lawsuit using a


       3
        All statutory references are to the Code of Civil Procedure except where
otherwise noted.


                                              6
summary-judgment-like procedure at an early stage of the litigation.‘ (Varian Medical
Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.)
       ―Finally, and as subdivision (a) of section 425.16 expressly mandates, the section
‗shall be construed broadly.‘
       ―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 (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 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.)
       So, the issue is whether plaintiffs‘ lawsuit is based on an ―issue of public interest.‖
We conclude it is.
       We begin our analysis with more quotation from Hecimovich: ―Like the SLAPP
statute itself, the question whether something is an issue of public interest must be
‗ ― ‗construed broadly.‘ ‖ ‘ (Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 23; see Rivera
v. First DataBank, Inc. (2010) 187 Cal.App.4th 709, 716 (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.) 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



                                               7
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.) 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.) The
‗critical consideration‘ is what the cause of action is ‗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
concluded, ―It is not a far stretch to say that such incidents, and the circumstances 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 truck drivers 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.
       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



                                                8
the third-party content on the pages and Facebook‘s editorial decisions to not remove
them. Thus, for example, the complaint contains these allegations:
       ―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.‖
       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 ‗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 at *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


                                               9
work with law enforcement when we believe there is a genuine risk of physical harm or
direct threats to public safety.‘ ‖4
       As will be seen, there was much language in Facebook‘s terms and conditions
providing for Facebook‘s discretion vis-à-vis content on its pages. But even if statements
in Facebook‘s terms could be construed as obligating 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,
―[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

       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.‖


                                             10
conduct in furtherance of free speech rights and must withstand scrutiny under
California‘s anti-SLAPP statute.‖ (Greater Los Angeles Age. 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 [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.)
       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 plaintiff, his ex-girlfriend. (Id. at p. 1098.)
As the Ninth Circuit described, it was a ―dangerous, cruel, and highly indecent use of the
internet for the apparent purpose of revenge.‖ (Ibid.) Plaintiff requested removal of the
profile numerous times, without success. Finally, 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.
       Plaintiff sued. The district court granted Yahoo!‘s motion to dismiss. The Ninth
Circuit affirmed in part and reversed in part, holding that plaintiff‘s negligent undertaking
claim was barred by the CDA, but her promissory estoppel claim was not. (Barnes,
supra, 570 F.3d at p. 1096.) Rather, the express promise by the director of
communications to take specific action to ―take care of it,‖ and plaintiff‘s reasonable and
detrimental reliance upon the promise, meant that plaintiff‘s claims sought to hold
Yahoo! liable as a promissor rather than as a publisher or speaker of third-party content.
As a result, the CDA did not apply to plaintiff‘s promissory estoppel claim.
       Knight has no promissory estoppel claim—and Barnes no applicability here.
Neither does section 425.17.
       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


                                             11
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 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 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 that Facebook has the discretion to remove content that
violates Facebook policies. By way of illustration, the terms include that: ―We can


                                              12
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 ―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 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 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 [promise in an
advertisement not commercial speech]; Navarro v. IHOP Properties, Inc. (2005)
134 Cal.App.4th 834, 841 [allegedly false promises to process potential buyers of
plaintiff‘s franchise rights without undue delay not a representation of fact].)



                                              13
       Knight‘s reliance on Demetriades v. Yelp, Inc. (2014) 228 Cal.App.4th 294 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, 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 puffery or opinion, 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, supra,
191 Cal.App.4th at p. 989, there in the context of one plaintiff:
       ―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 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.) [¶] 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


                                              14
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.) 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, 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; see Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1497.)‖
       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.) Plaintiffs‘
demonstration does not measure up.
                     The First, Second, and Third Causes of Action
       As noted, the trial court granted the anti-SLAPP motion 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
―information content provider‖ is ―any person or entity that is responsible, in whole or in



                                             15
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 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
Coun., San Fernando v. Roommates.com (9th Cir. 2008) 521 F.3d 1157, 1175.)
       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
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.‖
       This, of course, is the same argument Knight made in connection with step one, an
argument we rejected. It has no more merit in step two. 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


                                             16
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.)
       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 [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 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 section 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 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) common law
right of publicity, and (6) the derivative UCL claim on behalf of all plaintiffs. The
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


                                             17
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 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).)
       The fifth cause of action is for common law right of publicity. That claim has four
elements: (1) the defendant‘s use of the 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;
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.
       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, citing Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387,
391.) And ―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.‘ ‖ (Orthopedic Systems, Inc. v. Schlein (2011) 202 Cal.App.4th 529, 544.)
       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. (Montana v. San Jose Mercury News, Inc. (1995) 34 Cal.App.4th
790, 793.) The evidence here demonstrated no such use.


                                              18
       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 Knight‘s name and likeness for the purpose of advertising on the
unauthorized Facebook pages.‖
       To begin with, the allegations are unavailing. The law is that plaintiffs cannot 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; Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604,
613–614.) 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.

       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.


                                             19
In that case Google provided a service called Blogger, which allowed Blogger account
holders to create 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.)
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.)
       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
v. Google, Inc., supra, 2010 WL 9479060, 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.)
       The gravamen of 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 [requiring ―defendant‘s use of the plaintiff‘s
identity‖]; see 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
commercial purposes‖].)



                                               20
       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.
       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 Civil Code section 3344, subdivision (a) explicitly provides for possible liability on
―[a]ny 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. (See, e.g., Eastwood v. Superior Court, supra,
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 is persuasive.
Plaintiff 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


                                             21
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 court, which
thereafter granted defendants‘ motion for summary judgment. The Ninth 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.)
       Here, any ―benefit‖ to Facebook from the use of Knight‘s name and likeness is
even more attenuated. The advertisement in Newcombe actually 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.
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 parties as a butterfly
gatefold, which foldout contained a cigarette ad appearing as a two-page spread. The


                                              22
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 be striken.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. Frontline Video, Inc. (1993) 15 Cal.App.4th 536, 545 [scope of
―public affairs‖ and the ―public interest‖ is broad and ―include[s] things that would not
necessarily be considered news‖].) Nor the argument that these claims are barred by the
immunity created by the CDA.

       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.


                                              23
                                     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.




                                              24
                                              _________________________
                                              Richman, Acting P.J.


We concur:


_________________________
Stewart, J.


_________________________
Miller, J.




A148623 & A149140; Cross et al. v. Facebook




                                 25
Trial Court: San Mateo County Superior Court

Trial Judge: Hon. Donald J. Ayoob

Counsel:

Punzalan Law, Mark L. Punzalan; Cole Law Group, Todd G. Cole for Plaintiffs and
Appellants.

Perkins Coie, Michael B. Garfinkel, Eric David Miller, Julie Erin Schwartz, Lauren B.
Cohen; Durie Tangri, 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 Facebook, Inc.

Electronic Frontier Foundation, 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 Facebook, Inc.

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 Facebook, Inc.

Randazza Legal Group, Marc John Randazza and Alex James Shepard for Consumer
Opinion LLC and AVVO, Inc., as Amici Curiae on behalf of Defendant and Appellant
Facebook, Inc.




                                          26
