Metropolitan News-Enterprise

 

Tuesday, October 4, 2022

 

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C.A. Restores Action Based on Calling Plaintiff a ‘Con Man’

 

By a MetNews Staff Writer

 

The Court of Appeal for this district yesterday reinstated a defamation action against a man who tweeted that a “fantasy sports” analyst is a “con man,” declaring that such an allegation could be found to constitute libel per se.

Div. One said in an opinion by Justice Helen I. Bendix that Los Angeles Superior Court Judge Rupert Byrdsong erred in granting an anti-SLAPP motion as to the allegation that impugned plaintiff Alvin Zeidenfeld’s integrity. However, the opinion affirms the granting of a special motion to strike as to a separate allegation relating to litigation in which Zeidenfeld was involved.

“Fantasy sports” entail online prediction games. A player puts together make-believe teams comprised of actual players, and points are earned based on the real-life performance of those players.

‘Online Media Personality’

The plaintiff is a daily fantasy sports (“DFS”) analyst who describes himself as “an online media personality professionally known as ‘Smizzle’ or ‘Smizz’ ” who provides “advice and commentary on how to win daily fantasy sports,” with 50,000 followers on his Twitter account. He has worked for ESPN, appearing on a program on that cable network.

The defendants are David Stetler and his company, Fantasy Cruncher, Inc., which operates what the defendants term “a popular website and efficiency tool for DFS players.” They portray themselves as “well known figures in the often rough-and-tumble world of online daily fantasy sports” who “often engage in jabs, barbs, or ‘smack-talking’ on social media with others in the DFS industry.”

At issue was this tweet in response to one by Zeidenfeld:

“Smizz is a total fraud and this is probably the 10th lie he has told today. [Expletive] con man.”

 

Alvin Zeidenfeld provides “fantasy sports” analysis to his roughly 50,000 followers on Twitter as “Smizzle.” The Court of Appeal yesterday reinstated his libel action against a man who, in a tweet, called him a “con man.”

 

First Prong

Bendix declared that the first prong of the anti-SLAPP statute, Code of Civil Procedure §425.16—public speech on a public issue—is satisfied. She explained:

“The speech occurred on a public forum where plaintiff boasts over 50,000 followers. A reasonable objective observer could conclude that the statements concern plaintiff’s integrity as an influencer, with a following of 50,000, in providing services and advice to those persons in the burgeoning fantasy sports world. That defendants’ tweets were a matter of concern to a substantial number of people is demonstrated by the tweets of numerous nonparties in response to the challenged statements, with some even requesting additional information.”

The jurist continued:

“Because the speech was made to a large audience, was of concern to a substantial number of people, and involved the integrity of a person prominent in a multibillion dollar industry, we conclude that the challenged statements were in connection with an issue of public interest within the rubric of the anti-SLAPP statute.”

Second Prong

Describing the allegation about Zeidenfeld as playful “trash-talking” and hyperbole that was not apt to be perceived as a serious assertion, the defendants insisted that no actionable defamation could be found, hence the second prong of the anti-SLAPP statute—a probability that the plaintiff would prevail on the merits—is not satisfied.

Disagreeing, Bendix wrote: “We… conclude that the Con Man Statement may be understood as per se libelous. No additional context is necessary to understand defendants’ accusations as having a tendency to injure. The labels ‘fraud,’ ‘con-man’ and ‘liar,’ go to the heart of plaintiff’s reputation for veracity and without anything more, impugn his integrity.”

She said the comment could “reasonably be viewed as serious, fact-based attacks on Zeidenfeld’s integrity and not hyperbole.”

That actual malice might be demonstrated, Bendix pointed out, might be inferred from the fact that Stetler “never asserted that he believed in the truth of his Con Man Statement.”

Separate Allegation

Bendix agreed with the order striking the portion of the complaint relating to a tweet asking Zeidenfeld: “How did the lawsuit you had vs. your own wife turn out?” She reasoned:

“Merely stating involvement in litigation absent more information about the litigation, would not tend to harm a litigant’s reputation.  It is undisputed that plaintiff did not allege or present evidence of special damages—a necessary element of a purported defamatory statement that is not defamatory per se. Accordingly, plaintiff’s failure to establish a probability of prevailing on his claim of defamation per se regarding the Lawsuit Statement fails to pass step two of the anti-SLAPP framework.”

The case is Zeidenfeld v. Stetler, B308360.

Tyler R. Andrews of the Irvine office of Greenberg Traurig, and Bethany L. Rabe of its Las Vegas office represented Stetler and his company. Joseph S. Klapach of the Sherman Oaks firm of Klapach & Klapach and Thomas K. Richards of the Beverly Hills firm of Singh, Singh & Trauben acted for Zeidenfeld.

 

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