PLAINTIFF’S MOTION FOR LIMITED DISCOVERY PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16(G) BY VEM MILLER; HEARING ON ANTI-SLAPP MOTION (SPECIAL MOTION TO STRIKE)
address conclusive language Defendant provided in its moving papers (and during meet and confer efforts, see Kinnear Dec., Exh.1, second page) holding that “unjust enrichment merely duplicates [a] claim for quantum meruit and is not a separate cause of action.” (See above.)
Also, in opposition, Plaintiff points to different language it used pleading the two claims but cites no authority holding that doing so saves a claim that the courts referenced above held does not exist. Plaintiff further concedes that “[a]lthough pleaded as separate causes of action, both the quantum meruit and unjust enrichment claims were based on the same factual allegations.” (Opp., p. 3:22.) They are based on the same factual allegations, and are in fact the same, which is why the Jogani court and others held unjust enrichment is duplicative of quantum meruit and improper. SUSTAINED
4. CASE # CASE NAME HEARING NAME PLAINTIFF’S MOTION FOR LIMITED DISCOVERY PURSUANT TO CODE OF CVPS2601049 MILLER VS BIANCO CIVIL PROCEDURE § 425.16(G) BY VEM MILLER Tentative Ruling: Denied.
Responding party to provide notice pursuant to CCP 1019.5.
This is a defamation action. On February 2, 2026, Plaintiff Ven Miller (“Plaintiff”) filed a Complaint against Defendants Riverside County Sheriff Chad Bianco (“Bianco”) and County of Riverside (“County”)(together “Defendants”) for: (1) libel per se; (2) slander per se; (3) defamation by implication; (4) intentional infliction of emotional distress (“IIED”); and (5) violation of mandatory duty.
In the operative complaint, Plaintiff alleges that he is a media professional who supports President Donald Trump and attended over 20 events for him from 2020 to 2024. (Complaint at ¶¶ 17-18.) After learning of an upcoming presidential campaign rally for candidate Donald Trump in California, on October 8, 2024, Plaintiff travelled from Nevada to California with two of his lawful firearms in his vehicle to attend the rally. (Complaint at ¶¶ 19-20.) On the afternoon of October 12, 2024, the day of the rally, Plaintiff approached a sheriff’s deputy 20 yards prior to a checkpoint and a mile from the rally venue, disclosed that he had two firearms secured in his vehicle, and asked if the deputies wanted to hold onto his guns. (Complaint at ¶¶ 21-22.)
Thereafter, the deputies detained him, searched his vehicle, and ultimately arrested him for two misdemeanor firearms violations, which have since been dismissed. (Complaint at ¶ 23.) Plaintiff was booked at the John Benoit Detention Center, where he repeatedly requested his right to make a phone call, but his requests were denied. (Complaint at ¶¶ 24-25.) FBI and Secret service agents assessed the incident, determined Plaintiff posed no threat to presidential candidate Donald Trump, and informed Sheriff Bianco of this determination by the morning of October 13, 2024. (Complaint at ¶¶ 26-27, 30.)
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Plaintiff was released from custody early on October 13, 2024. (Complaint at ¶ 28.) At approximately 6:30 am on October 13, 2024, Riverside County Sheriff Bianco sent a message to The Epoch Times claiming that Plaintiff, a Trump supporter, was arrested the previous day for minor firearms violations and had stated he was going to kill the President, even though Plaintiff made no such statement. (Complaint at ¶¶ 1, 29, 31-32.) Sheriff Bianco sent the text before the incident became national news and before there was any media inquiry necessitating a response. (Complaint at ¶ 33.)
The information then spread to over 300 news outlets within 24 hours. (Complaint at ¶¶ 34, 44.) Later that morning, after being advised by federal authorities that Plaintiff posed no threat to President Trump, Sheriff Bianco gave an interview to the Riverside Press-Enterprise stating that deputies had stopped another assassination attempt. (Complaint at ¶¶ 35-36.) That afternoon, Bianco held a formal press conference that was broadcast nationally, wherein he falsely stated that deputies prevented an assassination attempt and Plaintiff had fake IDs and a fake press pass. (Complaint at ¶¶ 37-38.)
He also falsely implied that Plaintiff was a member of a sovereign citizen movement. (Complaint at ¶ 37.) On October 14, 2024, Bianco appeared on Fox News wherein he maintained his assertion that an assassination attempt had been prevented, and further stated that Plaintiff was a dual citizen with multiple names who had attempted to enter the rally venue with firearms. (Complaint at ¶ 39.) After his Fox News appearance on October 14, 2024, Bianco privately texted The Epoch Times stating that Plaintiff “never said it.
It was bad information,” but he never publicly retracted the statement. (Complaint at ¶¶ 1, 41-43, 62-63.) Bianco made the false statements knowing they were false, or with reckless disregard for the truth, which could have been confirmed with basic verification. (Complaint at ¶¶ 47-50.) He also failed to follow standard procedures regarding the review of information related to a noteworthy arrest before making any public statements. (Complaint at ¶¶ 52-53.)
Plaintiff further alleges that Bianco’s false statements about him have served Bianco’s personal political ambitions, as he has used the false narrative that he stopped an assassination to support his campaign for governor of California. (Complaint at ¶¶ 51, 65.) On March 16, 2025, at the California Republican Party convention, Bianco falsely stated that Plaintiff did not declare any firearms, and that deputies found a loaded handgun under the seat of his car. (Complaint at ¶ 55.) On April 11 and 12, 2025, Bianco falsely stated at campaign events and in podcast interviews that Plaintiff was arrested for fake license plates and had entered a Trump rally with guns. (Complaint at ¶ 55.)
Bianco’s false statements destroyed Plaintiff’s life, branding him as a wouldbe presidential assassin, and caused him to lose work and income, receive death threats, lose contact with his children, and have to go into hiding. (Complaint at ¶¶ 67-70.)
Plaintiff moves in the instant motion for an order allowing him to conduct limited discovery pursuant to C.C.P. § 425.16(g), arguing that actual malice and whether Bianco’s statements were privileged are central issues in the case; discovery was properly served before Defendants’ motion was filed; the discovery he seeks is narrowly tailored to the issues raised in Defendants’ motion; and the evidence is exclusively in Defendants’ hands.
In opposition, Defendants argue that Plaintiff propounded over 250 discovery requests, and fails to establish good cause for the discovery, that it is narrowly tailored to the issues raised by the anti-SLAPP motion, or that it is necessary to oppose the motion. They further argue that because application of the privileges asserted are legal defenses, discovery is inappropriate.
In reply, Plaintiff argues that he is not asking the court to lift the stay as to all of the propounded discovery, only as to the 7 defined categories tied to issues raised by the anti-SLAPP motion (i.e., falsity, whether the official duty privilege applies, and actual malice). The discovery is appropriate because the privileges asserted by Defendants depend on purpose, timing, and context..
Limited Discovery in Anti SLAPP Motion
Discovery is stayed upon the filing of an anti-SLAPP motion [C.C.P. § 425.16(b)] and may only be allowed if the trial court finds good cause for specified discovery to be conducted. (Murray v. Tran (2020) 55 Cal.App.5th 10, 37.) In the anti-SLAPP context, “good cause” for conducting discovery requires a showing that the specific discovery is necessary for the plaintiff to oppose the anti-SLAPP motion and is tailored to that end. (Balla v. Hall (2021) 59 Cal.App.5th 652, 692; Murray, 55 Cal.App.5th 10, 37.) To show good cause, however, plaintiff must make a prima facie showing at least as to the elements of the claim for which no discovery should be needed. (Paterno v. Sup. Ct. (Ampersand Publishing) (2008) 163 Cal.App.4th 1342,1349.)
“The statute’s truncated time frame for anti-SLAPP filings and hearings [Citation]; its provision for a stay of all discovery proceedings [Citation]; and its allowance of mandatory attorney fees to the prevailing defendant [Citation] all reflect the statutory purpose to prevent and deter SLAPP suits by ending them early and without great cost to the SLAPP target. [Citation.] In enacting section 425.16, ‘not only did the Legislature desire early resolution to minimize the potential costs of protracted litigation, it also sought to protect defendants from the burden of traditional discovery pending resolution of the motion.’” (Britts v.
Superior Court (2006) 145 Cal.App.4th 1112, 1124.) Against this, a court needs to weigh the need for discovery to preserve meritorious claims from dismissal under the anti-SLAPP statute: “Recognizing discovery is usually the most timeconsuming and expensive aspect of pretrial litigation, the Legislature sought to balance the need to protect defendants exercising their freedom of speech from having their personal and financial resources exhausted by SLAPP-ers’ discovery demands with the need to permit legitimate plaintiffs to conduct necessary discovery before their suits were subjected to dismissal for failure to establish a prima facie case.
To these ends section 425.16, subdivision (g) automatically stays all discovery in the action as soon as a SLAPP motion is filed but permits the trial court to lift this ban upon a showing of good cause.” (The Garment Workers Center v. Superior Court (2004) 117 Cal.App.4th 1156, 1161 [footnotes omitted].)
Defendant Bianco’s Statements
Defendants contend that the statements supporting Plaintiff’s defamation-related causes of action are based on statements made by Defendant Bianco on an issue of public interest. To prevail on their motion, Defendants must establish that Plaintiff’s claims arise out of protected activity. “Arising from” means that the defendant’s act underlying the plaintiff’s causes of action must itself have been an act in furtherance of the right of petition or free speech. (City of Cotati, supra, 29 Cal.4th at 78.)
Whether the anti-SLAPP statute applies is determined by the “principal thrust or gravamen” of the plaintiff’s claims; it cannot be invoked where the allegations of protected activity are only incidental to a cause of action based on nonprotected activity. (Martinez v. Metabolife Int’l, Inc. (2003) 113 Cal.App.4th 181, 187; Renewable Resources Coalition, Inc. v. Pebble Mines Corp. (2013) 218 Cal.App.4th 384, 387 [“To determine the applicability of ... the anti-SLAPP statute, [courts] look to the gravamen of the instant action ... [T]he gravamen of an action is the allegedly wrongful and injury-producing conduct, not the damage which flows from said conduct.”][italics in original].) “If the core injury-causing conduct on which plaintiff’s claim is premised does not rest on protected speech, collateral or incidental allusions to protected activity will not trigger application of the anti-SLAPP statute.” (Trilogy at Glen Ivy Maintenance Assn. v.
Shea Homes, Inc. (2015) 235 Cal.App.4th 361, 368 [citing Martinez, supra, 113 Cal.App.4th at 189].)
Under C.C.P. § 425.16(e), the anti-SLAPP statute applies to an act in furtherance of a person’s right of free speech or right to petition in connection with (1) written or oral statements made before a legislative, executive, judicial proceeding, or any other official proceeding authorized by law; (2) written or oral statement made in connection with an issue under consideration or review by a legislative, executive, judicial body or any other official proceeding authorized by law; (3) written or oral statement made in a public forum in connection with an issue of public interest; or (4) conduct in the furtherance of a constitutional right of petition or right of free speech in connection with a public issue or an issue of public interest. (C.C.P. §425.16(e).)
The statute is broadly construed “so that it may best serve its legislative purpose of encouraging continued participation in speech and petitioning activities.” (Tuszynska v. Cunningham (2011) 199 Cal.App.4th 257, 269.)
At issue here are subdivisions (e)(3) and (e)(4) of C.C.P. § 425.16 regarding statements made in connection with an issue of public interest. A public interest may be found where: (1) the subject statements concerned a person or entity in the public eye, (2) conduct that could directly affect a large number of people beyond the direct participants; or (2) a topic of widespread, public interest. (Rivero v. American Federation of State, County & Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 924.) “[T]he cases and the legislative history that discusses them suggest that ‘an issue of public interest’ within the meaning of section 425.16, subdivision (e)(3) is any issue in which the public is interested.
In other words, the issue need not be ‘significant’ to be protected by the anti-SLAPP statute—it is enough that it is one in which the public takes an interest.” (Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal. App. 4th 1027, 1042 [finding public interest in a European businessman].) The court looks at the context of the speech, and the functional relationship between the speech and the public conversation. (FilmOn.com, Inc. v. DoubleVerify, Inc. (2019) 7 Cal.5th 145, 149-150.) The latter part focuses on the contribution or participation in public discourse. (Id. at 154.)
Public interest under the meaning of the anti-SLAPP statute has been broadly construed to include governmental matters and actions. (Kurwa v. Harrington, Foxx, Dubrow & Canter, LLP (2007) 146 Cal.App.4th 841, 846.) It pertains to government matters that affect a community. (Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1039.) Furthermore, conduct done by government officials fulfilling their job duties (conducting a governmental investigation) have been found to fall within the anti-SLAPP statute. (Squires v. City of Eureka (2014) 231 Cal.App.4th 577, 589.)
Here, the alleged offensive statements by Defendant Bianco, a government official, related to Plaintiff’s arrest near a presidential campaign rally for Donald Trump for unlawful possession of firearms. (Complaint at ¶¶ 1, 29-39, 55.) The arrest of an individual related to guns brought to/near a presidential rally is clearly a matter of public interest. Plaintiff argues that the text to The Epoch Times and the statements made during Bianco’s campaign are not protected because the text was private, and the campaign statements were made months after the arrest.
However, he cites no authority for how either circumstance takes the conduct/statements outside the scope of the anti-SLAPP statute. Regarding the text, it was about a public issue, and though not in a public forum, it is protected under C.C.P. § 425.16 (e)(4) because that subdivision “includes conduct in furtherance of free speech rights, regardless whether that conduct occurs in a place where ideas are freely exchanged.” (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 896.) As to the subsequent statements during Bianco’s campaign, they still relate to an issue of public interest.
Plaintiff argues that there is good cause to allow him to conduct discovery related to whether Bianco was acting within his official duty when he made the allegedly defamatory statements, and as to facts showing actual malice. However, as discussed above, the official duty privilege applies to Bianco’s statements as a matter of law because his statements to the press were related to a citizen’s firearm arrest outside a presidential rally [Complaint at ¶¶ 1, 29-39, 55], and were thus within the scope of his official duty as sheriff, and the official duty privilege cannot be negated by malice or the speaker’s personal motivation. (Maranatha Corrections, supra, 158 Cal.App.4th at 1089; Kilgore, supra, 30 Cal.3d at 778.)
As the official duty privilege is an absolute bar to Plaintiff’s claims, discovery into any other issues is unnecessary. Accordingly, the motion must be denied even if the statements may have arguably been, at least in part, motivated by personal aspirations of Defendant Bianco (Balla, supra, 59 Cal.App.5th at 692; Murray, 55 Cal.App.5th at 37.)
5. CASE # CASE NAME HEARING NAME HEARING ON ANTI-SLAPP MOTION CVPS2601049 MILLER VS BIANCO (SPECIAL MOTION TO STRIKE) Tentative Ruling: Granted.
Moving party to provide notice pursuant to CCP 1019.5.
This is a defamation action. On February 2, 2026, Plaintiff Ven Miller (“Plaintiff”) filed a Complaint against Defendants Riverside County Sheriff Chad Bianco (“Bianco”) and County of Riverside (“County”)(together “Defendants”) for: (1) libel per se; (2) slander per se; (3) defamation by implication; (4) intentional infliction of emotional distress (“IIED”); and (5) violation of mandatory duty.
In the operative complaint, Plaintiff alleges that he is a media professional who supports President Donald Trump and attended over 20 events for him from 2020 to 2024. (Complaint at ¶¶ 17-18.) After learning of an upcoming presidential campaign rally for candidate Donald Trump in California, on October 8, 2024, Plaintiff travelled from Nevada to California with two of his lawful firearms in his vehicle to attend the rally. (Complaint at ¶¶ 19-20.) On the afternoon of October 12, 2024, the day of the rally, Plaintiff approached a sheriff’s deputy 20 yards prior to a checkpoint and a mile from the rally venue, disclosed that he had two firearms secured in his vehicle, and asked if the deputies wanted to hold onto his guns. (Complaint at ¶¶ 21-22.)
Thereafter, the deputies detained him, searched his vehicle, and ultimately arrested him for two misdemeanor firearms violations, which have since been dismissed. (Complaint at ¶ 23.) Plaintiff was booked at the John Benoit Detention Center, where he repeatedly requested his right to make a phone call, but his requests were denied. (Complaint at ¶¶ 24-25.) FBI and Secret service agents assessed the incident, determined Plaintiff posed no threat to presidential candidate Donald Trump, and informed Sheriff Bianco of this determination by the morning of October 13, 2024. (Complaint at ¶¶ 26-27, 30.)
Plaintiff was released from custody early on October 13, 2024. (Complaint at ¶ 28.) At approximately 6:30 am on October 13, 2024, Riverside County Sheriff Bianco sent a message to The Epoch Times claiming that Plaintiff, a Trump supporter, was arrested the previous day for minor firearms violations and had stated he was going to kill the President, even though Plaintiff made no such statement. (Complaint at ¶¶ 1, 29, 31-32.) Sheriff Bianco sent the text before the incident became national news and before there was any media inquiry necessitating a response. (Complaint at ¶ 33.)
The information then spread to over 300 news outlets within 24 hours. (Complaint at ¶¶ 34, 44.) Later that morning, after being advised by federal authorities that Plaintiff posed no threat to President Trump, Sheriff Bianco gave an interview to the Riverside Press-Enterprise stating that deputies had stopped another assassination attempt. (Complaint at ¶¶ 35-36.) That afternoon, Bianco held a formal press conference that was broadcast nationally, wherein he falsely stated that deputies prevented an assassination attempt and Plaintiff had fake IDs and a fake press pass. (Complaint at ¶¶ 37-38.)
He also falsely implied that Plaintiff was a member of a sovereign citizen movement. (Complaint at ¶ 37.) On October 14, 2024, Bianco appeared on Fox News wherein he maintained his assertion that an assassination attempt had been prevented, and further stated that Plaintiff was a dual citizen with multiple names who had attempted to enter the rally venue with firearms. (Complaint at ¶ 39.) After his Fox News appearance on October 14, 2024, Bianco privately texted The Epoch Times stating that Plaintiff “never said it.
It was bad information,” but he never publicly retracted the statement. (Complaint at ¶¶ 1, 41-43, 62-63.) Bianco made the false statements knowing they were false, or with reckless disregard for the truth, which could have been confirmed with basic verification. (Complaint at ¶¶ 47-50.) He also failed to follow standard procedures regarding the review of information related to a noteworthy arrest before making any public statements. (Complaint at ¶¶ 52-53.)
Plaintiff further alleges that Bianco’s false statements about him have served Bianco’s personal political ambitions, as he has used the false narrative that he stopped an assassination to support his campaign for governor of California. (Complaint at ¶¶ 51, 65.) On March 16, 2025, at the California Republican Party convention, Bianco falsely stated that Plaintiff did not declare any firearms, and that deputies found a loaded handgun under the seat of his car. (Complaint at ¶ 55.) On April 11 and 12, 2025, Bianco falsely stated at campaign events and in podcast interviews that Plaintiff was arrested for fake license plates and had entered a Trump rally with guns. (Complaint at ¶ 55.)
Bianco’s false statements destroyed Plaintiff’s life, branding him as a would-be presidential assassin, and caused him to lose work and income, receive death threats, lose contact with his children, and have to go into hiding. (Complaint at ¶¶ 67-70.)
Defendants move to strike Plaintiffs’ defamation-related claims (1st-4th causes of action) pursuant to C.C.P. § 425.16 on the ground that they arise out of protected activity, in that the alleged statements were on a public issue. They argue that Plaintiff cannot establish that any of these claims have minimal merit because the alleged statements are protected by the official duty privilege and the litigation privilege. They also argue that Plaintiff cannot establish that the defamation claims have merit because the alleged statements did not assert or imply an objective, provable fact, and there was no actual malice.
In his opposition, Plaintiff argues that not all of Bianco’s statements were protected speech because (1) the text to The Epoch Times was proactive and not part of any official proceeding, and (2) the March and April 2025 campaign statements were made six months after Plaintiff was arrested and cleared. He also argues that he has a probability of prevailing on his claims because the statements are provably false; they are actionable fact, not opinion; the official duty privilege does not apply to Bianco’s campaign statements because political purpose defeats the privilege; the litigation privilege does not apply to litigating in the press, which is what Bianco did; and Plaintiff is not public figure.
In reply, Defendants argue that Plaintiff’s claims arise out of protected activity, and Plaintiff cannot establish the minimal merit of his claims because they are barred by the official duty and litigation privileges, the totality of the circumstances show Bianco’s statements were opinion, not fact, and Plaintiff cannot establish actual malice.
Anti-SLAPP
As a general rule, when a cause of action arises out of the furtherance of a defendant’s right of petition or free speech in connection with a public issue, it is subject to a special motion to strike. (C.C.P. § 425.16(b)(1).) Importantly, however, “[t]he anti-SLAPP statute does not insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity.” (Baral v.
Schnitt (2016) 1 Cal.5th 376, 384 [emphasis in the original].) Thus, courts use a two-step evaluation to determine whether an action is a SLAPP suit subject to a special motion to strike: (1) the plaintiff’s claim must arise out of the defendant’s protected speech or petitioning; and (2) the defendant’s claim lacks even minimal merit. (Navellier v. Sletten, (2009) 29 Cal.4th 82, 88-89; see also Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009- 11; Ericsson GE Mobile Communications, Inc. v.
C.S.I. Telecommunications Engineers (1996) 49 Cal.App.4th 1591, 1601, 1603.)
The moving party bears the initial burden of showing that the action falls within the class of suits subject to the special motion to strike. (Wilcox v. Superior Court (1994) 17 Cal.App.4th 809, 819.) To meet the initial burden, a defendant need only show that the complaint “arises from” defendant’s exercise of free speech or petition rights as defined in §425.16(e). (Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61.) The act which forms the basis for the plaintiff’s cause of action or claim must itself have been an act in furtherance of the right of petition or free speech. (City of Cotati v.
Cashman (2002) 29 Cal.4th 69, 76-78.) Once the defendant makes a prima facie showing, the burden shifts to the plaintiff to establish a “probability” that it will prevail on whatever claims are asserted against the moving defendant. (C.C.P. § 425.16(b).) The plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment. (Navellier, supra, 29 Cal.4th at 89, 93.) The court does not weigh the credibility or comparative strength of the evidence, but instead accepts as true all evidence favorable to the plaintiff. (Soukup v.
Law Offices of Herbert Hafif (2006) 39 Cal.App.4th 260, 291; Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699-700.)
Here, Defendants contend that the statements supporting Plaintiff’s defamation-related causes of action are based on statements made by Defendant Bianco on an issue of public interest. To prevail on their motion, Defendants must establish that Plaintiff’s claims arise out of protected activity. “Arising from” means that the defendant’s act underlying the plaintiff’s causes of action must itself have been an act in furtherance of the right of petition or free speech. (City of Cotati, supra, 29 Cal.4th at 78.)
Whether the anti-SLAPP statute applies is determined by the “principal thrust or gravamen” of the plaintiff’s claims; it cannot be invoked where the allegations of protected activity are only incidental to a cause of action based on nonprotected activity. (Martinez v. Metabolife Int’l, Inc. (2003) 113 Cal.App.4th 181, 187; Renewable Resources Coalition, Inc. v. Pebble Mines Corp. (2013) 218 Cal.App.4th 384, 387 [“To determine the applicability of ... the anti-SLAPP statute, [courts] look to the gravamen of the instant action ... [T]he gravamen of an action is the allegedly wrongful and injury-producing conduct, not the damage which flows from said conduct.”][italics in original].) “If the core injury-causing conduct on which plaintiff’s claim is premised does not rest on protected speech, collateral or incidental allusions to protected activity will not trigger application of the anti-SLAPP statute.” (Trilogy at Glen Ivy Maintenance Assn. v.
Shea Homes, Inc. (2015) 235 Cal.App.4th 361, 368 [citing Martinez, supra, 113 Cal.App.4th at 189].)
Under C.C.P. § 425.16(e), the anti-SLAPP statute applies to an act in furtherance of a person’s right of free speech or right to petition in connection with (1) written or oral statements made before a legislative, executive, judicial proceeding, or any other official proceeding authorized by law; (2) written or oral statement made in connection with an issue under consideration or review by a legislative, executive, judicial body or any other official proceeding authorized by law; (3) written or oral statement made in a public forum in connection with an issue of public interest; or (4) conduct in the furtherance of a constitutional right of petition or right of free speech in connection with a public issue or an issue of public interest. (C.C.P. §425.16(e).)
The statute is broadly construed “so that it may best serve its legislative purpose of encouraging continued participation in speech and petitioning activities.” (Tuszynska v. Cunningham (2011) 199 Cal.App.4th 257, 269.)
At issue here are subdivisions (e)(3) and (e)(4) of C.C.P. § 425.16 regarding statements made in connection with an issue of public interest. A public interest may be found where: (1) the subject statements concerned a person or entity in the public eye, (2) conduct that could directly affect a large number of people beyond the direct participants; or (2) a topic of widespread, public interest. (Rivero v. American Federation of State, County & Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 924.) “[T]he cases and the legislative history that discusses them suggest that ‘an issue of public interest’ within the meaning of section 425.16, subdivision (e)(3) is any issue in which the public is interested.
In other words, the issue need not be ‘significant’ to be protected by the anti-SLAPP statute—it is enough that it is one in which the public takes an interest.” (Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal. App. 4th 1027, 1042 [finding public interest in a European businessman].) The court looks at the context of the speech, and the functional relationship between the speech and the public conversation. (FilmOn.com, Inc. v. DoubleVerify, Inc. (2019) 7 Cal.5th 145, 149-150.) The latter part focuses on the contribution or participation in public discourse. (Id. at 154.)
Public interest under the meaning of the anti-SLAPP statute has been broadly construed to include governmental matters and actions. (Kurwa v. Harrington, Foxx, Dubrow & Canter, LLP (2007) 146 Cal.App.4th 841, 846.) It pertains to government matters that affect a community. (Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1039.) Furthermore, conduct done by government officials fulfilling their job duties (conducting a governmental investigation) have been found to fall within the anti-SLAPP statute. (Squires v. City of Eureka (2014) 231 Cal.App.4th 577, 589.)
The alleged offensive statements by Defendant Bianco, a government official, related to Plaintiff’s arrest near a presidential campaign rally for Donald Trump for unlawful possession of firearms. (Complaint at ¶¶ 1, 29-39, 55.) The arrest of an individual related to guns brought to/near a presidential rally is clearly a matter of public interest. Plaintiff argues that the text to The Epoch Times and the statements made during Bianco’s campaign are not protected because the text was private, and the campaign statements were made months after the arrest.
However, he cites no authority for how either circumstance takes the conduct/statements outside the scope of the anti-SLAPP statute. Regarding the text, it was about a public issue, and though not in a public forum, it is protected under C.C.P. § 425.16 (e)(4) because that subdivision “includes conduct in furtherance of free speech rights, regardless whether that conduct occurs in a place where ideas are freely exchanged.” (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 896.) As to the subsequent statements during Bianco’s campaign, they still relate to an issue of public interest.
Therefore, Defendants have established that the claims against them arise out of protected activity, meeting the first prong. The burden therefore shifts to Plaintiff to establish the probability of prevailing on his claims.
Probability of Success on Claims
As noted above, once the defendant demonstrates that a claim “arises from” defendant’s exercise of free speech or petition rights, the burden shifts to the plaintiff to establish a “probability” that it will prevail on whatever claims are asserted against the moving defendant. (C.C.P. § 425.16(b).) The plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment. (Navellier, supra, 29 Cal.4th at 89, 93.)
Defendants argue that Plaintiff cannot establish a probability of success on his claims because the statements made by Bianco were opinion, not actionable facts; the official duty and litigation privileges apply; and Plaintiff cannot show actual malice. In response, Plaintiff argues that the statements upon which his claims are based were factual and neither privilege applies. He also filed a separate motion for limited discovery, arguing that targeted discovery is necessary to establish that the official duty privilege does not apply and actual malice.
1st, 2nd, and 3rd Causes of Action – Libel, Slander, and Defamation
Plaintiff asserts claims for libel, slander, defamation, and IIED. (Complaint, generally.) Defamation includes both libel and slander, and “involves the intentional publication of a statement of fact that is false, unprivileged, and has a natural tendency to injure or which causes special damage.” (Sonoma Media Investments, LLC v. Superior Court (2019) 34 Cal.App.5th 24, 37.) Importantly, a defamatory statement may be made by inference, implication and/or innuendo. (See, Hawran v. Hixson (2012) 209 Cal.App.4th 256, 293; see also, 53 CJS Libel, § 28 [Indirect language].)
In order to maintain an action for defamation by implication, the plaintiff must demonstrate that (1) his interpretation of the statement is reasonable; (2) the implication or implications to be drawn convey defamatory facts, not opinions; (3) the challenged implications are not substantially true; and (4) the identified reasonable implications could also be reasonably deemed defamatory. (Issa v. Applegate (2019) 31 Cal.App.5th 689, 707.) “Public figures have the burden of proving both that the challenged statement is false, and that [defendant] acted with actual malice.” (Id. [internal quotation marks & quotations omitted].)
“Though mere opinions are generally not actionable,” “a statement of opinion that implies a false assertion of fact is actionable.” (Issa, supra, 31 Cal.App.5th at 702 [internal citations omitted].) “‘Simply couching such statements in terms of opinion does not dispel these [false, defamatory] implications’ [citation] because a speaker may still imply ‘a knowledge of facts which lead to the [defamatory] conclusion.’” (McGarry v. Univ. of San Diego (2007) 154 Cal.App.4th 97, 112; see also, Ruiz v. Harbor View Community Assn. (2005) 134 Cal.App.4th 1456, 1471 [“An opinion . . . is actionable only “‘if it could reasonably be understood as declaring or implying actual facts capable of being proved true or false.”’”].)
Furthermore, “it is not the literal truth or falsity of each word or detail used in a statement which determines whether or not it is defamatory[.]” (Ringler Associates Inc. v. Maryland Casualty Co. (2000) 80 Cal.App.4th 1165, 1181–82.) “[I]f the defendant juxtaposes [a] series of facts as to imply a defamatory connection between them, or [otherwise] creates a defamatory implication . . . he may be held responsible for the defamatory implication, . . . even though the particular facts are correct.” (Weller v. Am. Broadcasting Companies, Inc. (1991) 232 Cal.App.3d 991, 1003, fn. 10 [internal quotation marks & quotation omitted].) The pertinent question is “whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact.” (Edward v. Ellis (2021) 72 Cal.App.5th 780, 790 [emphasis added].)
Defendants argue that Defendant Bianco’s statements were a matter of “opinion,” not factual assertions. However, as discussed above, “a statement of opinion that implies a [provably] false assertion of fact is actionable.” (Issa, supra, 31 Cal.App.5th at 702; Edward, supra, 72 Cal.App.5th at 790.) In determining whether a statement is actionable fact or nonactionable opinion, courts use a “totality of the circumstances” test. (Baker v. Los Angeles Herald (1986) 42 Cal.3d 254, 260.) Under this test, “[f]irst, the language of the statement is examined . . . . Next, the context in which the statement was made must be considered.” (Id. at 260–261.)
In the present case, Bianco stated in a press conference that Plaintiff “said that he was going to kill the president;” Plaintiff “was a lunatic;” he (Bianco) “truly believe[s his deputies] prevented another assassination attempt;” the sheriff’s department “probably stopped another assassination attempt;” and “we know we prevented something bad from happening.” (Decl. of Ethan Berman [“Berman Decl.”], Exs. B, C, F; Decl. of Anthony J. Ellrod [“Ellrod Decl.”], Exs. A, B, pp. 7:5-25, 9:5-20, 12:10-14, 15:19-21, 23:11-18.) While some of these statements may be considered, at least partially, Bianco’s opinion, they clearly imply an assertion of fact. Further, his statement that Plaintiff said he was going to kill the president is unquestionably a statement of fact.
Bianco later acknowledged that Plaintiff did not say he was going to kill the president, and his (Bianco) statement that Plaintiff made such a statement was “incorrect and based on bad info.” (Berman Decl., Ex. C.) He also stated that while he said his deputies probably prevented an assassination attempt, it was all speculation about what Plaintiff’s intentions were. (Berman Decl., Ex. F.) Additionally, there is evidence that the FBI and Secret Service evaluated the incident, determined Trump was not in any danger, and did not bring any charges against Plaintiff. (Berman Decl., Exs. C, F.) This is sufficient to show that at least some of Bianco’s statements are provably false. Therefore, Plaintiff has sufficient evidence to support this element of his defamation claims.
Official Duty Privilege
Defendants argue that Plaintiff still cannot establish a probability of success on his claims because the official duty privilege protects the statements made by Bianco. Under Civ. Code § 47(a), “[a] privileged publication . . . is one made . . . [i]n the proper discharge of an official duty.” (Civ. Code § 47(a).) This privilege “has been extended to lower level state or local officials so long as the publication was made while the official was exercising his policymaking function and was acting within the scope of his official duties.” (Neary v.
Regents of Univ. of Cal. (1986) 185 Cal.App.3d 1136, 1141.) Section 47(a) privilege does not apply to all communications made as part of official government acts. Instead, it applies only when the defendant is a qualifying executive officer who engages in the policy-making process and “the communication ‘was an appropriate exercise of the discretion which an officer of that rank must possess if the public service is to function effectively.” (See Copp v. Paxton (1996) 45 Cal.App.4th 829, 843–44.) “To be engaged in [the] exercise of [a] policymaking function, the official must reach a basic policy decision, as distinct from an operational decision, after balancing risks and advantages.” (Neary, supra, 185 Cal.App.3d at 1142 [emphasis added].) “When [the official duty] privilege applies, it is not qualified but absolute.” (Kilgore v.
Younger (1982) 30 Cal.3d 770, 778.) “Unlike qualified privileges, it is not negated by malice or other personal motivation of the publisher. ... For the absolute privilege to attach, the public official need only be properly discharging an official duty.” (Ibid.)
There is no dispute here that Defendant Bianco is the elected Riverside County Sheriff. There is also no dispute that the initial statements made by Defendant Bianco were related to an arrest outside a presidential rally for unlawful gun possession. (Complaint at ¶¶ 1, 29-39, 55.) “Because a public official's duty includes the duty to keep the public informed of his or her management of the public business, press releases, press conferences and other public statements by such officials are covered by the ‘official duty’ privilege...” (Maranatha Corrections, LLC v. Department of Corrections & Rehabilitation (2008) 158 Cal.App.4th 1075, 1089.) Thus, Defendant Bianco’s statements made in the days following the arrest appear to be covered by the official duty privilege. (Ibid.; see also, Kilgore, supra, 30 Cal.3d 770, Saroyan v. Burkett (1962) 57 Cal.2d 706.)
Plaintiff argues, citing Copp v. Paxton (1996) 45 Cal.App.4th 829, that even if the initial statements are covered by the privilege, those made months later during his political campaign are not covered because those statements served Defendant Bianco’s political interests. (Opposition, pp. 10:10-11:14.) However, in his Complaint, Plaintiff admits that the 2025 campaign statements are “not pled as separate defamation claims,” but instead to provide “relevant evidence of Bianco's actual malice regarding the October 2024 statements.” (Complaint at ¶¶ 55, 56.)
As set forth above, however, the official duty privilege “is not negated by malice or other personal motivation of the publisher.” (Kilgore, supra, 30 Cal.3d at 778.) Since the 2024 statements are protected by the official duty privilege, which is absolute, and the 2025 statements are not alleged to be defamatory, Plaintiff fails to submit sufficient evidence to show a probability of prevailing on his claims. Accordingly, Defendants’ motion must be granted as it pertains to the operative complaint.