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Case5:14-cv-01059-BLF Document22 Filed07/31/14 Page1 of 18
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JASON S. LEIDERMAN, SBN 203336

jay@criminal-lawyer.me
LAW OFFICES OF JAY LEIDERMAN
5740 Ralston Street, Suite 300
Ventura, California 93003
Tel: 805-654-0200
Fax: 805-654-0280
Attorney for Plaintiffs
JAMES MCGIBNEY
VIAVIEW, INC
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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Plaintiffs,
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vs.
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THOMAS RETZLAFF, an individual,
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NEAL RAUHAUSER, an individual,
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LANE LIPTON, an individual, and
DOES 1-5, individuals whose true names are not )
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known,
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Defendants.
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JAMES MCGIBNEY, an individual, and
VIAVIEW, INC, a corporation,
Case No.: 5:14-cv-01059 BLF

PLAINTIFFS OPPOSITION TO
DEFENDANT LANE LIPTONS SPECIAL
MOTION TO STRIKE PURSUANT TO CAL.
CODE CIV. P. 416.25
Hearing Date:
Time:
Place:
18 September 2014
9:00 am
Courtroom 3
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

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Plaintiffs James McGibney (McGibney) and ViaView, Inc. (ViaView) (collectively,

Plaintiffs) hereby submit this Opposition to Defendant Lane Liptons (Lipton or Defendant)
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Special Motion to Strike Pursuant to Cal. Code. Civ. P. 425.16.
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DEFENDANT LANE LIPTONS
SPECIAL MOTION TO STRIKE
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TABLE OF CONTENTS
TABLE OF CONTENTS ......................................................................................................................... ii
TABLE OF AUTHORITIES .................................................................................................................. iii
MEMORANDUM OF POINTS AND AUTHORITIES........................................................................ 1
I.
INTRODUCTION.......................................................................................................................... 1
II.
STATEMENT OF ISSUES. .......................................................................................................... 1
III.
STATEMENT OF RELEVANT FACTS/ALLEGATIONS. ..................................................... 1
IV.
ARGUMENT. ................................................................................................................................. 4
A. LIPTON CANNOT MEET HER BURDEN BY DENYING THAT SHE MADE THE
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ALLEGED STATEMENTS. .............................................................................................................. 4
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B. PLAINTIFFS CLAIMS DO NOT ARISE FROM ANY ACT IN FURTHERANCE OF FREE
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SPEECH. ............................................................................................................................................. 5
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C. PLAINTIFFS HAVE DEMONSTRATED A PROBABILITY OF PREVAILING ON THE
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MERITS OF EACH OF THE CAUSES OF ACTION AGAINST LIPTON. .................................... 7
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1.
Plaintiffs Need Not Establish that Lipton Personally Made any Statements in Order to
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Establish the Likelihood of Prevailing on the Complaint. .............................................................. 8
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2.
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of the Defamation Claim. .............................................................................................................. 10
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3.
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Cause of Action for Tortious Interference With Contractual Relations Claim. ........................... 11
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4.
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Advantage Claim. ......................................................................................................................... 12
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5.
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Distress Claim. .............................................................................................................................. 13
Regardless of Whether McGibney is a Public Figure, He is Likely to Prevail on the Merits
Plaintiffs Have Submitted Sufficient Evidence to Establish a Likelihood of Prevailing on
Plaintiffs Will Probably Prevail on Their Tortious Interference With Prospective Economic
Plaintiff McGibney Will Probably Prevail on His Intentional Infliction of Emotional
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D. ALTERNATIVELY, PLAINTIFFS REQUEST THE HEARING BE CONTINUED TO
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ALLOW LIMITED DISCOVERY. .................................................................................................. 13
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V.
CONCLUSION. ........................................................................................................................... 14
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TABLE OF AUTHORITIES
STATE CASES
Applied Equipment Corp. v. Litton Saudi Arabia Ltd., 7 Cal.4th 503 (Cal. 1994) ..................................... 8
Conroy v. Spitzer, 70 Cal.App.4th 1446 (Cal. Ct. App. 1999) ................................................................... 7
Equilon Enterprises v Consumer Cause, Inc., 29 Cal.4th 53 (Cal. 2002) .................................................. 5
Fox Searchlight Pictures, Inc. v. Paladino, 89 Cal.App.4th 294 (Cal. 2001) ............................................ 6
Hernandez v. Gen. Adjustment Bureau, 199 Cal.App.3d 999 (Cal. Ct. App. 1988) ................................ 13
Kashian v. Harriman, 98 Cal.App.4th 892 (Cal. Ct. App. 2002) ............................................................... 4
Matson v. Dvorak, 40 Cal.App.4th 539 (Cal. Ct. App. 1995) .................................................................... 7
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Navellier v. Sletten, 29 Cal.4th 82 (Cal. 2002) ....................................................................................... 4, 5
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Paulus v. Bob Lynch Ford, 139 Cal.App.4th 659 (Cal. Ct. App. 2006) ..................................................... 7
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Reeves v. Hanlon, 33 Cal.4th 1140 (Cal. 2004) .................................................................................. 11, 12
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San Jose Construction, Inc. v. SBCC, Inc., 155 Cal.App.4th 1528 (Cal. Ct. App. 2007) ........................ 12
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Soukup v. Low Offices of Herbert Hafif, 39 Cal.4th 260 (Cal. 2006) ......................................................... 8
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Weinberg v. Feisel, 110 Cal.App.4th 1122 (Cal. Ct. App. 2003) ............................................................... 6
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Wilbanks v. Wolk, 121 Cal.App.4th 883 (Cal. Ct. App. 2004) ................................................................... 7
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Wilcox v. Superior Court, 27 Cal.App.4th 809 (Cal. Ct. App. 1994) ......................................................... 7
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Wyatt v. Union Mortgage Co., 24 Cal.3d 773 (Cal. 1979) ......................................................................... 8
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Yu v. Signet Bank/Virginia, 103 Cal.App.4th 298 (Cal. Ct. App. 2002) .................................................... 7
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FEDERAL CASES
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Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1968) ............................................................................. 13
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Connick v. Myers, 461 U.S. 138 (1983)...................................................................................................... 6
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Gilbrook v. City of Westminster, 177 F.3d 839 (9th Cir. 1999) .............................................................. 8, 9
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Greater Los Angeles Agency on Deafness, Inc. v. Cable News Network, Inc., 742 F.3d 414 (9th Cir.
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2014) ............................................................................................................................................. 7, 8, 10
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Hilton v. Hallmark Cards, 599 F.3d 894 (9th Cir. 2009) ........................................................................... 4
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Hutchinson v. Proxmire, 443 U.S. 111 (1979) ........................................................................................... 6
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Industrial Bldg. Materials, Inc. v. Interchemical Corp., 437 F.2d 1336 (9th Cir. 1970) ........................... 9
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Kunik v. Racine County, 946 F.2d 1574, 1580 (7th Cir. 1991) .................................................................. 9
Metabolife Intl, Inc. v. Wornick, 264 F.3d 832 (9th Cir. 2001) ............................................................... 13
Mindys Cosmetics v. Dakar, 611 F.3d 590 (9th Cir. 2010) ........................................................................ 5
New York Times v. Sullivan, 376 U.S. 254 (1964).................................................................................... 10
Rogers v. Homes Shopping Network, 57 F.Supp.2d 973 (C.D. Cal. 1999) .............................................. 13
United States v. Calabrese, 825 F.2d 1342 (9th Cir. 1987) ........................................................................ 9
United Steelworkers of America v. Phelps Dodge Corp., 865 F.2d 1539 (9th Cir.1989)........................... 9
Vieux v. East Bay Regl Park Dist., 906 F.2d 1330 (9th Cir.1990) ............................................................ 8
STATUTES
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Cal. Civ. Code 44 ................................................................................................................................... 10
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Cal. Civ. Code 45 ................................................................................................................................... 10
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Cal. Code Civ. P. 425.16................................................................................................................. passim
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RULES
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Fed. R. Civ. P. 56 ...................................................................................................................................... 13
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MEMORANDUM OF POINTS AND AUTHORITIES.

I.
INTRODUCTION.
California Code of Civil Procedure 425.16, also known as the Anti-SLAPP statute, is aimed
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at stopping Strategic Lawsuits Against Public Participation. This suit is not such a suit. Indeed, as a
matter of primacy, Lipton denies any participation in any of the activities that this suit involves. Her
claims in this motion are fatally flawed because of that fact.
This suit aims to right the personal and financial harm caused by a small but relentless group of
Internet bullies who make threats, defame and spread lies about Plaintiff James McGibney with the
explicit goal of destroying his business, Co-Plaintiff ViaView, Inc. As alleged fully in the Complaint,
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Defendant Lane Lipton played a significant role in this civil conspiracy, controlling several important
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Twitter accounts and helping administer the conspirators website, bvfiles.wordpress.com. Despite her
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arguments to the contrary, Liptons conduct was not free speech, nor was it the kind of public
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participation the Anti-SLAPP statute was designed to protect. Even so, Plaintiffs have submitted
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evidence demonstrating their claims are sufficiently meritorious to survive. The Motion to Strike must
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be denied.
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II.
STATEMENT OF ISSUES.
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The issues to be decided in an Anti-SLAPP motion under Cal. Code Civ. P. 425.16 are:
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(1) Does plaintiffs cause of action arise from an act of the defendant in furtherance of the
defendants right of petition or free speech?
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(2) If yes, has plaintiff established that the lawsuit has minimal merit?
III.
STATEMENT OF RELEVANT FACTS/ALLEGATIONS.

Plaintiff James McGibney is the CEO and founder of ViaView, Inc. (See McGibney Decl.;
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Compl. 14.) Plaintiff ViaView is a private corporation which operates the websites BullyVille and
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CheaterVille, which aim to give voice to victims of bullying and infidelity, respectively. (Id. 15.) The
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primary revenue for ViaView is from advertising on these websites. (Id. 18.) McGibney is also an
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outspoken opponent of revenge porn, sexually explicit pictures and movies published on the internet
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without the subjects permission. (Id. 16.)
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Beginning in June 2013, Defendants Lipton, Neal Rauhauser, Thomas Retzlaff, and others yet
unidentified (collectively, Defendants) began a campaign aimed at destroying ViaViews business and
McGibneys personal life. (Id. 1.) Although these defendants were initially motivated by different
things, they eventually joined forces with the common goal of harming Plaintiffs financially and
personally. (See id. 23-28, 82-86, 94-104.)
There are two primary aspects of Defendants collective effort to ruin Plaintiffs. First, the group
uses numerous sock accounts on various social media platforms to publically publish false,
threatening, harassing, and defamatory statements about McGibney and ViaView. (See, e.g., id. 28-
29, 80, 95.) Defendants have used Twitter, Facebook, and Wordpress blogs in an attempt to reach as
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wide an audience as possible. (Ibid.) Many (but not nearly all) of these statements are repeated in the
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Complaint verbatim, and include the following:
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If I was listed on his website [BullyVille] I would put a bullet in his head. . . . So go
ahead James, keep it up. . . . its gonna cost you and your family your lives. (Id. 34.)
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James McGibney is a lying homosexual. (Id. 36.)
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James and Christina McGibney live at [address redacted], they own a revenge porn
website Cheaterville. (Ibid.)
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CHILD ABUSER. . . . (Id. 107.)
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Bullyville and his minions have been threatening to have people raped and murdered,
stalking their children & getting people fired from jobs. (Ibid.)
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If youre a friend of BullyVille, you can rape whoever you want. Hell start threatening
to kill the accuser. (Id. 108.)
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Bullyville and every single piece of trash around him are child abusers who give real
pedo hunters a bad name. #Anonymous (Ibid.)
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EVERY SINGLE PERSON LINKED TO BULLYVILLE IS A PEDOPHILE AND
[Plaintiffs are] Blackmailing & extorting hundreds of dollars from people to take down
the libel about them from his revenge porn sites. He then re-posts. (Ibid.)
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JAMES MCGIBNEY IS A PEDOPHILE. [] JAMES MCGIBNEY IS A
PEDOPHILE. [] JAMES MCGIBNEY IS A PEDOPHILE. [] JAMES
MCGIBNEY IS A PEDOPHILE. (Ibid.)
The McGibney deadbeats run several revenge porn sites & extortion sites where they
blackmail people out of hundreds of dollars to take down posts. (Id. 111.)
Even after they pay BullyVille, he re-posts it back up on hi [sic] sites. That extortion
company has now been hit with a RICO suit. (Ibid.)
Bullyville and the pedophiles who masquerade as pedo hunters still to this day release
the nudes of several men and women. REVENGE PORN. (Ibid.)
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Every statement accusing McGibney of being a pedophile, or ViaView of operating a revenge porn
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website, or Plaintiffs of extorting people through CheaterVille is patently false.
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The second aspect of Defendants conspiracy is the conspirators private communications to
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Plaintiffs advertising and business partners. Defendants have systematically contacted Plaintiffs
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advertising partners, submitting false complaints that CheaterVille is a revenge porn website. Some of
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these complaints were posted on public websites. (See id. 39-40, 54, 58.) Others were submitted
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privately. All of the complaints included the false statement that Plaintiffs are running revenge porn
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websites.
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Defendant Lane Lipton participated in the civil conspiracy in at least two ways. First, as alleged
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in the Complaint, Lipton shared control of three of the most vocal Twitter accounts: @OccupyRebellion,
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@MissAnonNews, and @MissAnonNews_. (Id. 95.) Lipton denies this in her declaration in support
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of her Motion to Strike. (See Docket No. 16-2 10-12.)
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Second, Lipton had administrative control over Defendants collective Wordpress blog,
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bvfiles.wordpress.com. (Compl. 114-124.) In the Complaint, Plaintiffs tie Lipton to the blog using a
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combination of a ruse and network forensics. (Ibid.) In sum, this evidence shows that a computer
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located in Liptons hometown attempted to log in to bvfiies.wordpress.com, a blog configured to look
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and feel identical to bvfiles.wordpress.com. (Ibid.) The user on that computer used the username
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she.purrs@hotmail.com while attempting to log in as an administrator to the fake bvfiles site. (Ibid.)
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Plaintiffs further allege that the IP address associated with this login attempt is assigned to Liptons
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Internet Service Provider (ISP), and that Lipton was previously associated with the
she.purrs@hotmail.com e-mail address. (Ibid.) Plaintiffs theory is that these facts conclusively
demonstrate that Liptons role in the conspiracy was an active one. Lipton again denies all of this.
(Docket No. 16-2 18.)
Out of this conduct, Plaintiffs seek injunctive and monetary relief under five different theories of
liability: (1) tortious interference with contractual relations, (2) tortious interference with prospective
economic advantage, (3) intentional infliction of emotional distress, (4) defamation, and (5) public
disclosure invasion of privacy.
IV.
ARGUMENT.
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Section 425.16 requires the trial court to undertake a two-step process. Hilton v. Hallmark
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Cards, 599 F.3d 894, 903 (9th Cir. 2009); Kashian v. Harriman, 98 Cal.App.4th 892, 906 (Cal. Ct. App.
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2002). First, the court must decide whether the defendant has made a prima facie showing that the acts
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of which the plaintiff complains were taken in furtherance of the [defendants] right of petition or free
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speech . . . . 425.16(b)(1); Hilton v. Hallmark, 599 F.3d at 903. Second, if the defendant makes that
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showing, the burden shifts to the plaintiff to show a probability of prevailing on the claim. Hilton v.
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Hallmark, 599 F.3d at 903 (quoting Havellier v. Sletten, 29 Cal.4th 82, 124 (Cal. 2002)). Plaintiffs
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should win on both prongs of this test.
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A.
LIPTON CANNOT MEET HER BURDEN BY DENYING THAT SHE MADE

THE ALLEGED STATEMENTS.
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Anti-SLAPP motions are intended to stop meritless lawsuits from chilling a defendants public
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participation. Yet in support of her Motion to Strike, Lipton declares that she did not make any of the
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alleged statements. Accordingly, she did not participate. (Lipton Decl. 10-12, 18-19.) As a matter of
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logic, it is paradoxical for a defendant to deny making any of the statements while at the same time
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arguing that the pending lawsuit was brought to chill his or her exercise of free speech rights. If Lipton
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did not make any defamatory statements; if she was not an administrator of the bvfiles blog; if she did
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not participate in the conspiracy to ruin Plaintiffs business; these arguments are defenses on the merits.
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They are not the proper subject of an Anti-SLAPP motion. I didnt do it is flatly inconsistent with I
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was exercising my free speech rights. Liptons self-serving denials cannot, as a matter of law, satisfy
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her burden of proof. Indeed, she must affirmatively allege that she was involved in 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 (California Code of Civil Procedure section 425.16(a)).
As discussed below, she made no such allegations and thus cannot prevail.
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B.
PLAINTIFFS CLAIMS DO NOT ARISE FROM ANY ACT IN FURTHERANCE

OF FREE SPEECH.
Lipton did not identify any act in furtherance of free speech. A defendant making an Anti-
SLAPP motion to strike must, to satisfy the statutes first prong, demonstrate that the underlying lawsuit
arises out of acts made in furtherance of the [defendants] right of petition or free speech under the
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United States Constitution or the California Constitution in connection with a public issue . . . . Cal.
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Code Civ. P. 425.16(b)(1). Californias Anti-SLAPP statute defines an act in furtherance of a
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persons right of petition or free speech to include:
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(1) any written or oral statement or writing made before a legislative, executive, or judicial
proceeding, or any other official proceeding authorized by law;
(2) any written or oral statement or writing made in connection with an issue under consideration
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or review by a legislative, executive, or judicial body, or any other official proceeding
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authorized by law;
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(3) 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;
(4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the
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constitutional right of free speech in connection with a public issue or an issue of public
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interest.
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Cal. Code Civ. P. 425.16(e). In the anti-SLAPP context, the critical consideration is whether the
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cause of action is based on the defendants protected free speech or petitioning activity. Mindys
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Cosmetics v. Dakar, 611 F.3d 590, 597 (9th Cir. 2010) (emphasis altered) (quoting Navellier v. Sletten,
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29 Cal.4th at 89); see also Equilon Enterprises v Consumer Cause, Inc., 29 Cal.4th 53, 61 (Cal. 2002)
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(to invoke Anti-SLAPP protection, a defendant must establish that the challenged lawsuit arose from an
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act on the part of the defendant in furtherance of her right of petition or free speech (quoting Fox
Searchlight Pictures, Inc. v. Paladino, 89 Cal.App.4th 294, 307 (Cal. 2001))).
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Lipton begins her attempt to meet this burden by asserting that Twitter and the Internet are public
forums. (Mot. to Strike pp. 9-10.) On this narrow point, Plaintiffs agree.
She then argues categorically that Statements made about James McGibney and Viaview are a
matter of public interest because of the ongoing national discussion regarding bullying and revenge porn
in society. (Id. pp. 11-12.) On this point, Plaintiffs vehemently disagree. As courts have consistently
recognized, there should be some degree of closeness between the challenged statements and the
asserted public interest. Weinberg v. Feisel, 110 Cal.App.4th 1122, 1132 (Cal. Ct. App. 2003) (citing
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Connick v. Myers, 461 U.S. 138, 148-49 (1983)). Asserting a broad and amorphous public interest is
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not sufficient. Weinberg v. Feisel, 110 Cal.App.4th at 1132 (citing Hutchinson v. Proxmire, 443 U.S.
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111, 135 (1979)).
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While bullying and revenge porn are doubtless matters of public interest, the tortious conduct is
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tied to those matters only by the thinnest and most superficial of threads. Lipton makes no effort to
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explain how publicly hurling false accusations that McGibney is a pedophile has anything to do with the
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ongoing national discussion regarding bullying and revenge porn in society. She cannot connect the
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false allegations that McGibney threatened to rape and kill his critics with any legitimate public debate.
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She is incapable of demonstrating that privately issuing false complaints to Plaintiffs advertising
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partners with the sole purpose of ruining those partnerships contributes to the public discourse. In sum,
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while Lipton points out a broad area of public interest, she makes no effort to identify any particular
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statements that actually contribute to any public discussion of that area of interest.
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The alleged conduct here has nothing to do with the national discussion regarding bullying and
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revenge porn. Instead, Defendants use that important matter of public interest as sleight-of-hand,
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cloaking their tortious conduct in the guise of free speech. This court should reject this attempt to
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abuse the First Amendment, find that Lipton has not satisfied 425.16s first prong, and deny her
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Motion to Strike in its entirety.
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C.
PLAINTIFFS HAVE DEMONSTRATED A PROBABILITY OF PREVAILING
ON THE MERITS OF EACH OF THE CAUSES OF ACTION AGAINST
LIPTON.
Even if the court finds that Lipton has carried her burden on the first prong of the Anti-SLAPP
inquiry, it should find for Plaintiffs on the second prong. Where 425.16 applies, the cause of action
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. Cal. Code Civ. P.
425.16(b)(1) (emphasis added). In making that determination, the court shall consider the pleadings,
and supporting and opposing affidavits stating the facts upon which the liability or defense is based.
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Id. 425.16(b)(2). To establish such a probability, a plaintiff must demonstrate that the complaint is
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both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable
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judgment if the evidence submitted by the plaintiff is credited. Matson v. Dvorak, 40 Cal.App.4th 539,
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548 (Cal. Ct. App. 1995); Conroy v. Spitzer, 70 Cal.App.4th 1446, 1451 (Cal. Ct. App. 1999); Wilcox v.
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Superior Court, 27 Cal.App.4th 809, 823 (Cal. Ct. App. 1994). The plaintiffs burden on this issue is
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akin to that of a party opposing nonsuit, directed verdict, or summary judgment. Paulus v. Bob Lynch
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Ford, 139 Cal.App.4th 659, 672 (Cal. Ct. App. 2006). However, a motion to strike under section
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425.16 is not a substitute for a motion for a demurrer or summary judgment. [citation] In resisting such
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a motion, the plaintiff need not produce evidence that he or she can recover on every possible point
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urged. It is enough that the plaintiff demonstrates that the suit is viable, so that the court should deny
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the special motion to strike and allow the case to go forward. Wilbanks v. Wolk, 121 Cal.App.4th 883,
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905 (Cal. Ct. App. 2004) (emphasis added). The causes of action need only be shown to have minimal
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merit. Yu v. Signet Bank/Virginia, 103 Cal.App.4th 298, 318 (Cal. Ct. App. 2002); see also Greater
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Los Angeles Agency on Deafness, Inc. v. Cable News Network, Inc., 742 F.3d 414, 425 (9th Cir. 2014)
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(hereinafter, GLAAD) (plaintiff must show only a minimum level of legal sufficiency and triability).
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A court determining whether a plaintiff has satisfied this low burden neither weighs credibility nor
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compares the weight of the evidence. GLAAD, 742 F.3d at 425. Rather, [courts] accept as true the
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evidence favorable to the plaintiff . . . and evaluate the defendants evidence only to determine if it has
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defeated that submitted by the plaintiff as a matter of law. Ibid. (alteration added) (quoting Soukup v.
Low Offices of Herbert Hafif, 39 Cal.4th 260, 269 n.3 (Cal. 2006)).
Here, the factual allegations in the Complaint, combined with the facts in the attached
declaration of James McGibney, demonstrate that each cause of action has far more than minimal
merit. Defendants self-serving declaration in support of her Motion to Strike does not defeat
Plaintiffs claims as a matter of law. The court should find for the Plaintiffs on the second prong of
the Anti-SLAPP test, and deny Liptons Motion to Strike.
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Plaintiffs Need Not Establish that Lipton Personally Made any Statements in
Order to Establish the Likelihood of Prevailing on the Complaint.
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Lipton argues that Plaintiffs cannot show a probability of prevailing on any of the stated causes
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of action because Plaintiff will not be able to prove that Lipton committed any tortious act. (Mot. to
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Strike at 13.) This contention demonstrates a misunderstanding of Plaintiffs theory of liability, and is
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otherwise without merit.
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As is clear from the first paragraph of the Complaint, Plaintiffs allege that the Defendants acted
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in concert as part of a civil conspiracy. A civil conspiracy is a combination of two or more persons
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who, by some concerted action, intend to accomplish some unlawful objective for the purpose of
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harming another which results in damage. Gilbrook v. City of Westminster, 177 F.3d 839, 856 (9th Cir.
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1999) (quoting Vieux v. East Bay Regl Park Dist., 906 F.2d 1330, 1343 (9th Cir.1990)). A civil
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conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although
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not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design
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in its perpetration. Applied Equipment Corp. v. Litton Saudi Arabia Ltd., 7 Cal.4th 503, 510-11 (Cal.
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1994) (citing Wyatt v. Union Mortgage Co., 24 Cal.3d 773, 784 (Cal. 1979)). That is, a coconspirator
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incurs tort liability co-equal with the immediate tortfeasors. Applied Equipment Corp., 7 Cal.4th at
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511. To prove a civil conspiracy, the plaintiff must show that the conspiring parties reached a unity of
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purpose or a common design and understanding, or a meeting of the minds in an unlawful
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arrangement. Gilbrook, 177 F.3d at 856 (quoting Vieux v. East Bay Regl Park Dist., 906 F.2d at
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1343). Such an agreement need not be overt, and may be inferred on the basis of circumstantial
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evidence such as the actions of the defendants. Vieux v. East Bay Regl Park Dist., 906 F.2d at at 856. A
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showing that the alleged conspirators have committed acts that are unlikely to have been undertaken
without an agreement may allow a jury to infer the existence of a conspiracy. Kunik v. Racine County,
946 F.2d 1574, 1580 (7th Cir.1991). A defendant's knowledge of and participation in a conspiracy may
be inferred from circumstantial evidence and from evidence of the defendant's actions. See United
States v. Calabrese, 825 F.2d 1342, 1348 (9th Cir. 1987) (involving a criminal conspiracy). To be
liable, each participant in the conspiracy need not know the exact details of the plan, but each participant
must at least share the common objective of the conspiracy. United Steelworkers of America v. Phelps
Dodge Corp., 865 F.2d 1539, 1541 (9th Cir.1989) (en banc).
Thus, to succeed on their theory, Plaintiffs need not show that Lipton personally made any of the
10
tortious statements or committed any of the tortious acts alleged in the Complaint. Plaintiffs must only
11
show that Lipton shared a unity of purpose or a common design and understanding with her co-
12
conspirators who committed the torts. And on this point, the evidence that Lipton was an administrator
13
of the bvfiles.wordpress.com bloga publication whose stated purpose is to personally and
14
professionally attack James McGibneyprovides ample evidence of her active participation in the
15
conspiracy. (See McGibney Decl. 38-44, Exhibit 4.)
16
Lipton points out that the Complaint ties her to the bvfiles site by showing not that she accessed
17
the bvfiles.wordpress.com sitea fact Plaintiffs will need court-sanctioned discovery to prove
18
absolutelybut by showing that she attempted to log in as an administrator to an identical site. (Mot. p.
19
13; Compl. 114-124.) She objects because these allegations are about an individual accessing a
20
different website. (Mot. to Strike, p. 13.) On a superficial level, this is true: the allegations in the
21
Complaint are not direct evidence of Liptons control over the genuine bvfiles site. They are, however,
22
if believed, very strong circumstantial evidence that Lipton intended to log into the genuine site as an
23
administrator, and that she was an active participant in the alleged conspiracy. Of course, the elements
24
of a conspiracy, agreement and intent, may be, and often must be, shown by circumstantial evidence.
25
Industrial Bldg. Materials, Inc. v. Interchemical Corp., 437 F.2d 1336, 1343 (9th Cir. 1970) (emphasis
26
added); Gilbrook v. City of Westminster, 177 F.3d at 856-57. The Complaint and attached Declaration
27
of James McGibney provides this circumstantial evidence.
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Finally, Liptons declaration stating that she did not participate in publishing the
bvfiles.wordpress.com website and that she did not have access to the @OccupyRebellion,
@MissAnonNews and @MissAnonNews_ accounts must, at this stage, be ignored. See GLAAD, 742
F.3d at 425 (courts evaluating the second prong of an Anti-SLAPP motion accept as true the evidence
favorable to the plaintiff).
2.
7
8
Regardless of Whether McGibney is a Public Figure, He is Likely to Prevail on

the Merits of the Defamation Claim.
Defamation can be either by slander or libel. Cal. Civ. Code 44. California Civil Code 45
provides that Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other
10
fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or
11
which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.
12
Cal. Civ. Code 45.
13
Lipton objects to Plaintiffs defamation claim by arguing that McGibney is an all-purpose public
14
figure, or, in the alternative, that he is a limited-purpose public figure. (Mot. to Strike, pp.15-18.)
15
Consequently, the argument continues, Plaintiffs must show that the allegedly defamatory statements
16
were made with actual malice; that is, that the statements were made with reckless disregard for their
17
truth. (Ibid.) See also New York Times v. Sullivan, 376 U.S. 254, 279-80 (1964).
18
Even if McGibney is a public figure for the purposes of defamation law, he is still likely to
19
prevail on the merits because the false statements were made with actual malice. Specifically, the
20
following false statements made by Defendants, including Lipton, were made in reckless disregard of
21
the truth: (1) McGibney is a pedophile, (2) CheaterVille and BullyVille are revenge porn websites,
22
and (3) McGibney fraudulently obtained his Masters and Business degrees. (Compl. 177-183; see
23
also McGibney Decl.) Defendants had no reason besides their personal animus for McGibney to accuse
24
him of pedophilia, no factual basis whatsoever for that claim. Any reasonable investigation of that fact
25
would have turned up nothing. One defendant even directly admitted that neither BullyVille and
26
CheaterVille deliberately host pornographic images. (See id. 68.) Another salient fact is that most
27
times Mr. McGibneys name is mentioned it is immediately followed by the words: who we dont like
28
in parenthesis.
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As alleged in the Complaint and reiterated in McGibneys attached declaration, these false
statements have caused Plaintiffs substantial damage to their reputations and pocketbooks. It is common
sense that repeated false accusations that McGibney is a pedophile are injuries to his reputation. More
importantly, the false statements to Plaintiffs advertising partners that BullyVille and CheaterVille are
revenge porn websites have cost Plaintiffs hundreds of thousands of dollars in lost advertising
revenue. (McGibney Decl. 34-37.) They have also damaged Plaintiffs business reputation, affecting
their ability to engage new advertisers in new business partnerships. (Ibid.) In short, Plaintiffs have
shown a likelihood they will prevail on the defamation claim.
3.
Plaintiffs Have Submitted Sufficient Evidence to Establish a Likelihood of
10
Prevailing on Cause of Action for Tortious Interference With Contractual
11
Relations Claim.
12
The elements of tortious interference with contractual relations are: (1) the existence of a valid
13
contract between the plaintiff and a third party; (2) the defendants knowledge of that contract; (3) the
14
defendants intentional acts designed to induce a breach or disruption of the contractual relationship; (4)
15
actual breach or disruption of the contractual relationship; and (5) resulting damage. Reeves v.
16
Hanlon, 33 Cal.4th 1140, 1152 (Cal. 2004).
17
Liptons sole argument is that Plaintiffs will be unable to prove that Lipton had knowledge of
18
contracts between Plaintiffs and third parties. (Mot. to Strike p. 19.) Besides this fact being a matter of
19
common senseit should go without saying that Internet advertising relationships are based on
20
contracts among advertisers, networks of advertisers, and website operatorsthe content of the
21
bvfiles.wordpress.com website rebuts Liptons argument. The blog post titled Comments from James
22
McGibneys Advertisers shows that the bvfiles website administratorsLipton and her co-
23
conspiratorsknew full well that Plaintiffs relied on contracts with advertisers for their income.
24
(Compl. 131; McGibney Decl. Exhibit 3.) Lipton cannot escape liability by feigning ignorance to the
25
existence of contracts between Plaintiffs and their advertising partners.
26
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4.
Plaintiffs Will Probably Prevail on Their Tortious Interference With Prospective

Economic Advantage Claim.
Even if the court buys Liptons argument she was clueless that Internet advertisers have
contractual relationships with the websites on which they advertise, Plaintiffs are nevertheless likely to
prevail on a theory of tortious interference with prospective economic advantage. This tort shares
elements with the contractual interference tort, and similarly compensates for the loss of an
advantageous economic relationship but does not require the existence of a legally binding contract.
Reeves v. Hanlon, 33 Cal.4th at 1152. The elements are: (1) an economic relationship with the project
owners . . . ; (2) defendants knowledge of this relationship; (3) defendants intentional acts designed to
10
disrupt that relationship; (4) actual disruption of the relationship; and (5) economic harm . . .
11
proximately caused by defendants acts. San Jose Construction, Inc. v. SBCC, Inc., 155 Cal.App.4th
12
1528, 1544 (Cal. Ct. App. 2007). Instead of a contract, the interference-with-prospective-economic-
13
advantage tort requires a showing that the defendant committed independently wrongful act. Ibid. An
14
act is independently wrongful if it is unlawful, that is, if it is proscribed by some constitutional,
15
statutory, regulatory, common law, or other determinable legal standard. Reeves v. Hanlon, 33 Cal.4th
16
at 1152.
17
Here, the content of the bvfiles blog shows that Defendants knew Plaintiffs had relationships
18
with advertisers, deliberately submitted false complaints and encouraged others to do so as well.
19
(McGibney Decl. Exhibits 1-3.) Plaintiffs have also submitted evidence that their relationships with
20
advertisers were disrupted and caused harm. (McGibney Decl. 22-24.) Moreover, Defendants
21
committed independently wrongful acts; in fact, the tortious interference claims are premised on the
22
defamatory statements made to advertisers. These defamatory statements made publically about
23
Defendant were independently wrongful acts. See Part IV C 2, supra. In short, Plaintiffs have met
24
their burden and established that they are likely to prevail on their second cause of action for tortious
25
interference with prospective economic advantage claim.
26
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5.
Plaintiff McGibney Will Probably Prevail on His Intentional Infliction of

Emotional Distress Claim.
McGibney has submitted sufficient evidence to establish a probability of prevailing on his claim
for intentional infliction of emotional distress. The elements of that tort are: (1) outrageous conduct by
the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional
distress; (2) plaintiffs suffering of emotional distress; and (3) causation. Hernandez v. Gen.
Adjustment Bureau, 199 Cal.App.3d 999, 1007 (Cal. Ct. App. 1988). Liptons Motion challenges only
the second element: whether Plaintiff suffered severe or extreme emotional distress. (Mot. to Strike, p.
20.) This is a wholly meritless suggestion.
10
Defendants outrageous conduct, described in detail in the Complaint and McGibneys
11
Declaration, caused McGibney severe emotional distress. He has a bleeding ulcer in his stomach that
12
has been aggravated by the conduct of defendants. He has lost sleep due to continual death threats and
13
is constantly stressed about the fact that the people on the bvfiles blog have said that they were sending
14
the Aryan Brotherhood to his house, and the bvfiles published his address; that that they wanted to make
15
him watch as they went over his half breed children with a blowtorch and hang his children. (See
16
McGibney Decl. 45-51.)
17
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19
D.
ALTERNATIVELY, PLAINTIFFS REQUEST THE HEARING BE CONTINUED

TO ALLOW LIMITED DISCOVERY.
In the case that the court finds for Lipton on both prongs of the Anti-SLAPP inquiry, Plaintiffs
20
respectfully ask it to stay a final ruling to permit limited discovery. Although the statute by its own
21
terms prohibits discovery, see Cal. Code Civ. P. 425.16(g), that provision directly conflicts with Rule
22
56 of the Federal Rules of Civil Procedure, which allows a plaintiff the opportunity to discovery
23
information that is essential to his opposition. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5
24
(1968). As such, the discovery prohibition in the state statute does not apply in federal court. See
25
Metabolife Intl, Inc. v. Wornick, 264 F.3d 832, 846-47 (9th Cir. 2001) (remanding to the district court to
26
allow for discovery, despite Anti-SLAPP provisions prohibiting it); Rogers v. Homes Shopping Network,
27
57 F.Supp.2d 973, 982 (C.D. Cal. 1999) (Because the discovery-limiting aspects of 425.16(f) and (g)
28
collide with the discovery-allowing aspects of Rule 56, these aspects of subsections (f) and (g) cannot
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apply in federal court.). As such, Plaintiffs must be given the opportunity to conduct reasonable
discovery before dismissal under the Anti-SLAPP statute.
V.
4
5
CONCLUSION.
For the foregoing reasons, Liptons Motion to Strike should be denied in its entirety. Or,
alternatively, the court should stay its ruling pending limited discovery.
6
7
Dated: 31 July 2014
8
By:___/s/_Jay Leiderman_________________
Jason S. Leiderman
Attorney for Plaintiffs
James McGibney
ViaView, Inc.
jay@criminal-lawyer.me
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Case5:14-cv-01059-BLF Document22 Filed07/31/14 Page1 of 18

JASON S. LEIDERMAN, SBN 203336

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

Case No.: 5:14-cv-01059 BLF

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

Plaintiffs James McGibney (McGibney) and ViaView, Inc. (ViaView) (collectively,

LAW OFFICES OF JAY LEIDERMAN

Case5:14-cv-01059-BLF Document22 Filed07/31/14 Page2 of 18

TABLE OF CONTENTS ......................................................................................................................... ii

TABLE OF AUTHORITIES .................................................................................................................. iii

MEMORANDUM OF POINTS AND AUTHORITIES........................................................................ 1

STATEMENT OF ISSUES. .......................................................................................................... 1

STATEMENT OF RELEVANT FACTS/ALLEGATIONS. ..................................................... 1

ALLEGED STATEMENTS. .............................................................................................................. 4

B. PLAINTIFFS CLAIMS DO NOT ARISE FROM ANY ACT IN FURTHERANCE OF FREE

C. PLAINTIFFS HAVE DEMONSTRATED A PROBABILITY OF PREVAILING ON THE

MERITS OF EACH OF THE CAUSES OF ACTION AGAINST LIPTON. .................................... 7

Establish the Likelihood of Prevailing on the Complaint. .............................................................. 8

of the Defamation Claim. .............................................................................................................. 10

Advantage Claim. ......................................................................................................................... 12

Distress Claim. .............................................................................................................................. 13

Regardless of Whether McGibney is a Public Figure, He is Likely to Prevail on the Merits

Plaintiffs Have Submitted Sufficient Evidence to Establish a Likelihood of Prevailing on

Plaintiff McGibney Will Probably Prevail on His Intentional Infliction of Emotional

D. ALTERNATIVELY, PLAINTIFFS REQUEST THE HEARING BE CONTINUED TO

ALLOW LIMITED DISCOVERY. .................................................................................................. 13

LAW OFFICES OF JAY LEIDERMAN

Case5:14-cv-01059-BLF Document22 Filed07/31/14 Page3 of 18

Conroy v. Spitzer, 70 Cal.App.4th 1446 (Cal. Ct. App. 1999) ................................................................... 7

Equilon Enterprises v Consumer Cause, Inc., 29 Cal.4th 53 (Cal. 2002) .................................................. 5

Kashian v. Harriman, 98 Cal.App.4th 892 (Cal. Ct. App. 2002) ............................................................... 4

Matson v. Dvorak, 40 Cal.App.4th 539 (Cal. Ct. App. 1995) .................................................................... 7

Navellier v. Sletten, 29 Cal.4th 82 (Cal. 2002) ....................................................................................... 4, 5

Reeves v. Hanlon, 33 Cal.4th 1140 (Cal. 2004) .................................................................................. 11, 12

Wyatt v. Union Mortgage Co., 24 Cal.3d 773 (Cal. 1979) ......................................................................... 8

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1968) ............................................................................. 13

Connick v. Myers, 461 U.S. 138 (1983)...................................................................................................... 6

Hutchinson v. Proxmire, 443 U.S. 111 (1979) ........................................................................................... 6

LAW OFFICES OF JAY LEIDERMAN

Case5:14-cv-01059-BLF Document22 Filed07/31/14 Page4 of 18

New York Times v. Sullivan, 376 U.S. 254 (1964).................................................................................... 10

Cal. Civ. Code 44 ................................................................................................................................... 10

Cal. Civ. Code 45 ................................................................................................................................... 10

Cal. Code Civ. P. 425.16................................................................................................................. passim

Fed. R. Civ. P. 56 ...................................................................................................................................... 13

LAW OFFICES OF JAY LEIDERMAN

Case5:14-cv-01059-BLF Document22 Filed07/31/14 Page5 of 18

MEMORANDUM OF POINTS AND AUTHORITIES.

claims in this motion are fatally flawed because of that fact.

STATEMENT OF RELEVANT FACTS/ALLEGATIONS.

without the subjects permission. (Id. 16.)

LAW OFFICES OF JAY LEIDERMAN

Case5:14-cv-01059-BLF Document22 Filed07/31/14 Page6 of 18

personally. (See id. 23-28, 82-86, 94-104.)

Complaint verbatim, and include the following:

James McGibney is a lying homosexual. (Id. 36.)

CHILD ABUSER. . . . (Id. 107.)

EVERY SINGLE PERSON LINKED TO BULLYVILLE IS A PEDOPHILE AND

LAW OFFICES OF JAY LEIDERMAN

Case5:14-cv-01059-BLF Document22 Filed07/31/14 Page7 of 18