Schneider v. Warner Bros. Discovery, Inc.

Filed 9/10/26 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE DAN SCHNEIDER, B343434 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. 24NNCV01328) v. WARNER BROS. DISCOVERY, INC., et al., Defendants and Appellants. APPEAL from an order of the Superior Court of Los Angeles County, Ashfaq G. Chowdhury, Judge. Reversed. Greenberg Traurig, Vincent H. Chieffo, Alex Linhardt; Foley Hoag, Michael J. Grygiel, Kelly L. McNamee and Christina N. Hernsdorf; Gibson Dunn & Crutcher, Theodore J. Boutrous, Ilissa Samplin, Zachary C. Freund, and Connor S. Sullivan for Defendants and Appellants. Jassy Vick Carolan, Jean-Paul Jassy, Kevin Vick; Lisa Zycherman, Mara Gassmann and Claudia Liss-Schultz for the Reporters Committee for Freedom of the Press and the International Documentary Association as Amici Curiae on behalf of Defendants and Appellants. Moser Legal and Jana M. Moser; Sullivan & Worcester and Gerry Silver for Plaintiff and Respondent. ‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗ Plaintiff and respondent Dan Schneider is a television producer, creator, and writer, who is associated with a number of children’s television shows airing on the Nickelodeon network from the late 1990’s and 2000’s, including All That, The Amanda Show, Drake & Josh, and iCarly, among others. He is also one of the primary subjects of the documentary Quiet on Set: The Dark Side of Kids TV (Quiet on Set), a five-part documentary series that explores the behind-the-scenes culture of some of Schneider’s shows. Quiet on Set also details incidents of sexual abuse perpetrated by Nickelodeon employees against child actors who worked on these shows. Schneider argues that “through the use of voiceovers, photos, videos, graphics, editing and production,” Quiet on Set implies a false relationship between these subjects and leads a reasonable viewer to inaccurately conclude that Schneider “committed crimes of child sexual abuse.” Schneider sued Defendants, who are parties that “variously wrote, filmed, produced marketed, broadcast and streamed” Quiet on Set and its trailer, for defamation.1 Defendants filed a special motion to strike Schneider’s sole cause of action under 1 Defendants and appellants are Warner Brothers Discovery, Inc., Maxine Productions, Sony Productions, and individuals Mary Robertson and Emma Schwartz (collectively, Defendants), who “wrote, directed, produced and/or edited Quiet on Set and its trailer.” 2 California’s statute combatting strategic lawsuits against public policy (SLAPPs). (Code Civ. Proc., § 425.16, subd. (b).)2 The trial court denied Defendants’ motion and Defendants timely appealed. We reverse, finding that Schneider has not demonstrated a likelihood of success on the merits. FACTUAL AND PROCEDURAL BACKGROUND Schneider’s complaint arises from Defendants’ creation and distribution of the documentary Quiet on Set. The trailer, advertising the documentary and teasing its contents, began circulating online in February 2024. The trailer lasted approximately two-and-a-half minutes. The documentary itself was presented as five separate episodes; the first four were released on March 17 and 18, 2024, and a fifth episode that, in part, responded to the public’s reaction to the first four episodes, aired on April 7, 2024. Each episode is around 42 minutes, and the documentary has a total running time of around three hours and 30 minutes. Schneider argues that the totality of the editorial choices made by Defendants imply that he sexually abused children who worked on his television shows. His complaint identified several excerpts from Quiet on Set and its trailer that he asserts contribute to that inference. We will further discuss these specific challenged excerpts, but the crux of Schneider’s argument, as stated in his complaint, is that “the voiceovers and graphics in Quiet on Set and its trailer, juxtaposed or edited with the visual depictions, are purposefully and intentionally 2 All further statutory references are to the Code of Civil Procedure unless otherwise indicated. 3 defamatory in that they falsely and repeatedly state or imply that Schneider is a child sexual abuser and committed crimes in this regard.” Schneider’s Complaint and Defendants’ Anti-SLAPP Motion to Strike Schneider filed his complaint for defamation on May 1, 2024. On July 3, 2024, Defendants filed an anti-SLAPP motion to strike the entirety of Schneider’s complaint. In support, Defendants filed, among other things, time-stamped copies of the trailer and episodes. Defendants argued that these works constituted “ ‘conduct in furtherance of the exercise of . . . the constitutional right of free speech in connection with a public issue or an issue of public interest,’ ” and that Schneider’s complaint was therefore subject to an anti-SLAPP motion to strike, pursuant to section 425.16, subdivision (b)(1). They also argued that Schneider could not demonstrate any probability of success on the merits because the documentary and trailer were not reasonably susceptible to a defamatory meaning. They additionally asserted that Schneider had no evidence of actual malice to establish that Defendants created the work with the knowledge that it was susceptible to this defamatory interpretation, as is required for a defamation case involving a public figure. Finally, they argued that Schneider failed to adequately plead special damages, and that this omission was fatal to his complaint. Schneider filed an opposition. He did not contest that the complaint arose from activity protected by the anti-SLAPP statute. Instead, he argued that his claim had sufficient merit to prevail, and he detailed the specific elements of the documentary and trailer that he argued implied a defamatory meaning. He 4 also asserted that his evidence was sufficient for a factfinder to conclude that Defendants acted with actual malice in their production choices. In response to Defendants’ claim that he failed to sufficiently plead special damages, he contended that this was not a requirement for his claim, but that he had done so, nonetheless. In support, Schneider submitted a declaration by John Vaccaro, a partner at a public relations firm providing services to Schneider. The Vaccaro declaration included copies of public posts found on various online platforms, including comments posted on the YouTube.com comment section of the trailer, and others published on the social media platform X (formerly Twitter). This declaration also included posts made under an “apology video” that was created by Schneider and posted on his own Facebook page, which responded to the first four Quiet on Set episodes. Schneider relied on these posts as evidence that average viewers did, in fact, infer from the documentary and trailer that he had sexually abused children. Defendants filed evidentiary objections to the Vaccaro declaration, which the trial court overruled. Defendants also filed a reply in support of their anti-SLAPP motion, supported by additional declarations.3 3 Schneider failed to submit a declaration expressly denying that he had not sexually abused children on his television shows. In light of this failure, Defendants argued that Schneider’s evidence was inadequate because it did not include a declaration “evidencing an essential element of his defamation claim—the falsity of the alleged implication that he is a child molester.” The trial court ultimately considered a conforming copy of Schneider’s late-filed declaration in opposition to the anti-SLAPP motion. 5  On November 22, 2024, the trial court denied Defendants’ motion to strike. The trial court recounted the arguments by each side and set forth the two-step process for evaluating an anti-SLAPP motion to strike. First, the moving defendant must make a prima facie showing “ ‘ “that the act or acts of which the plaintiff complains were taken ‘in furtherance of the [defendant]’s right of petition or free speech . . . .’ ” [Citation.]’ [Citation.] If the defendant carries this burden, the plaintiff must then demonstrate its claims have at least ‘ “minimal merit” ’ [Citation].” The trial court noted the parties’ agreement on step one that “[t]here’s no question in this case that Plaintiff’s claims involve free speech.” Moving to step two, the trial court then found that this was “not a case brought by Schneider on frivolous grounds, simply to harass defendants,” and was therefore “not the type of baseless lawsuit . . . that the anti-SLAPP statute was designed to weed out.” The trial court found that Schneider “argues persuasively that defamation can be implied . . . and how the ordinary viewer understands the trailer and documentary to be defamatory.” The trial court did not provide a detailed analysis of the merits of Schneider’s defamation claim, but concluded that he “carried his burden . . . [and] show[ed] that his claim has at least ‘minimal merit,’ for the purposes of this stage of the anti-SLAPP analysis . . . [and] pointed to [ ] substantial amounts of evidence that could support his theory of implied defamation.” Defendants timely appealed. 6  DISCUSSION I. The anti-SLAPP framework and our standard of review on appeal California law authorizes a special motion to strike unmeritorious pleadings that have the effect of “ ‘chill[ing] the defendant’s exercise of First Amendment Rights.’ ” (Paul v. Friedman (2002) 95 Cal.App.4th 853, 861.) The Legislature created this procedure, codified at section 425.16, in response to “a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” (§ 425.16, subd. (a).) “Section 425.16 is a procedural remedy designed to eliminate SLAPPs in the early stages of litigation” and is intended to spare defendants the unnecessary expense of litigation and the concomitant chill on speech that fear of such litigation engenders. (Paul, at p. 862.) As such, “[a]nti-SLAPP motions may only target claims ‘arising from any act of [the defendant] in furtherance of the [defendant’s] right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.’ ” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062 (Park).) This is codified in section 425.16, subdivision (e), to include, among other activities, “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.” (§425.16, subd. (e)(3).) An anti-SLAPP motion to strike proceeds in two steps. “At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them. . . . If the court determines that relief 7 is sought based on allegations arising from activity protected by the statute, the second step is reached. There, the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff’s showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is stricken.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 396.) At both steps, the party bearing the burden must only establish a prima facie showing. (Issa v. Applegate (2019) 31 Cal.App.5th 689, 701–702 (Issa).) “ ‘Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to be stricken under the statute.’ ” (Id. at p. 701, quoting Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) “In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim.” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821; see also Park, supra, 2 Cal.5th at p. 1067 [“We do not, however, weigh the evidence, but accept plaintiff’s submissions as true and consider only whether any contrary evidence from the defendant establishes its entitlement to prevail as a matter of law”].) 8  The appellate court’s review of an order granting an anti- SLAPP motion is de novo. (Park, supra, 2 Cal.5th at p. 1067; see also Mundy v. Lenc (2012) 203 Cal.App.4th 1401, 1408 [“An appellate court reviews an order denying an anti-SLAPP motion from a clean slate”].) However, “[i]f the trial court’s decision denying an anti-SLAPP motion is correct on any theory applicable to the case, we may affirm the order regardless of the correctness of the grounds on which the trial court reached its conclusion.” (Issa, supra, 31 Cal.App.5th at p. 701.)4 It is therefore our job to determine, after an “ ‘independent review of the entire record,’ ” whether Defendants made a threshold showing that Schneider’s claim arose from Defendants’ free speech protected by section 425.16, and, if so, whether Schneider has made a sufficient showing that he is likely to succeed on the merits of his defamation case. (De Havilland v. FX Networks, LLC (2018) 21 Cal.App.5th 845, 856, quoting City of Costa Mesa v. D’Alessio Investments, LLC (2013) 214 Cal.App.4th 358, 371.) II. Analysis A. Protected Speech It is undisputed that the documentary and trailer fall under the categories of speech protected by the anti-SLAPP 4 Parties and amici curiae debate whether the trial court incorrectly applied the “minimal merit” standard to allow Schneider’s claim to proceed merely upon a showing that it was not frivolous or intended to harass. Regardless of whether the trial court applied the correct standard, this court may affirm the denial of the motion to strike if the court was correct in its ultimate conclusion. (Balzaga v. Fox News Network, LLC (2009) 173 Cal.App.4th 1325, 1336 (Balzaga) [“We thus review the trial court’s ruling and not its rationale”].) 9 statute. (§ 425.16, subd. (e).) The trial court found that step one had been satisfied and Schneider does not challenge this finding on appeal. B. Likelihood of Success on the Merits At the second step, Schneider must “make a prima facie showing of facts that, if proven, would support a judgment in his favor” on his sole cause of action for defamation per se. (Issa, supra, 31 Cal.App.5th at pp. 701–702.) “ ‘The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.’ ” (Id. at p. 702, quoting Taus v. Loftus (2007) 40 Cal.4th 683, 720.) In addition, because Schneider is a public figure, “he must also demonstrate, by clear and convincing evidence, that the challenged statements were made with actual malice.” (Id. at p. 703.) Schneider’s complaint does not allege that any specific factual statement regarding him in Quiet on Set is false. That Defendants’ documentary is not alleged to contain express falsities is not, however, fatal to a claim of defamation. “California law recognizes that a defamatory statement can be either ‘expressly stated or implied.’ ” (Manzari v. Associated Newspapers Ltd. (9th Cir. 2016) 830 F.3d 881, 889 (Manzari), quoting Forsher v. Bugliosi (1980) 26 Cal.3d 792, 803 (Forsher).) “ ‘ “[I]f the defendant juxtaposes [a] series of facts so 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.” [Citation.]’ [Citation.] Therefore, ‘it is the defamatory implication—not the underlying assertions giving rise to the implication—which must be examined to discern whether the 10 statements are entitled to full constitutional protection.’ ” (Weller v. American Broadcasting Companies, Inc. (1991) 232 Cal.App.3d 991, 1003, fn. 10.) Because Schneider relies on a theory of defamation by implication, he “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, supra, 31 Cal.App.5th at p. 707.) Schneider claims that a reasonable implication of Defendants’ documentary is that Schneider sexually abused children. Defendants do not argue that characterization as a child sexual predator is not defamatory.5 Nor do the parties dispute whether this characterization is “substantially true.” Schneider 5 Defendants argue that Schneider’s claim is not defamatory per se because it relies on implication. Defamation per se encompasses defamation by implication, provided that it is unnecessary to rely on extrinsic information to discern the defamatory meaning of the offending statement. (See McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 112 [“A statement can also be libelous per se if it contains a charge by implication from the language employed by the speaker and a listener could understand the defamatory meaning without the necessity of knowing extrinsic explanatory matter”].) Defendants do not argue that extrinsic information is required to understand why labeling Schneider as one who molests children “exposes [him] to hatred, contempt, ridicule, or . . . has a tendency to injure him in his occupation.” (Civ. Code, § 45; see also Grenier v. Taylor (2015) 234 Cal.App.4th 471, 486 [statements that plaintiff molested children were factual statements alleging criminal conduct and are defamatory on their face].) 11 denies engaging in such conduct and, while Defendants stand by allegations of other forms of bad behavior made in Quiet on Set, they do not advance the argument that child sexual abuse is a substantially true description of Schneider’s conduct. Additionally, Defendants do not argue that characterizing Schneider as someone who has sexually abused children is merely a matter of opinion and not a fact capable of being disproven. Thus, the only element of Schneider’s defamation by implication claim that is disputed by Defendants is whether their work is reasonably subject to the meaning Schneider contends. On appeal, we are tasked with determining whether Quiet on Set and its trailer are reasonably subject to Schneider’s interpretation as a matter of law. If the court finds that Defendants’ work is “ ‘susceptible of both an innocent and libelous meaning,’ ” then Schneider has satisfied the minimal merit threshold and the motion to strike must be denied. (Edward v. Ellis (2021) 72 Cal.App.5th 780, 790 (Edward), quoting Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 385.) i. Evidentiary issues Before addressing whether Schneider satisfied his burden and demonstrated a probability of success on the merits, we must determine what evidence may properly be considered. Through the Vaccaro declaration, Schneider introduced statements found online that were purportedly made by viewers of the documentary or its trailer reflecting their belief that Schneider had engaged in child sexual abuse. Schneider argues that these online postings should be considered as evidence that viewers did, in fact, attribute a defamatory meaning to Defendants’ work, and thereby support his assertion that Quiet on Set and its trailer 12 are susceptible to a defamatory implication as a matter of law. Defendants objected to the Vaccaro declaration on various grounds, including lack of foundation and relevance, which were overruled by the trial court. Defendants renew their arguments that these statements taken from various social media platforms should not be considered. We agree. We consider the trial court’s evidentiary ruling for abuse of discretion. (Bennett v. Superior Court (2019) 39 Cal.App.5th 862, 876.) “A trial court ruling that rests on an error of law is an abuse of discretion.” (Ibid.) The evidence that Schneider seeks to have the court consider are statements in newspapers and Internet postings such as: “Dan Schneider needs to be in prison IMMEDIATELY,” “Dan Schneider was the Harvey Weinstein of Nickelodeon,” and “We owe [Amanda Bynes] and [Drake Bell] an apology and our support. May they find peace and may the abusive [Nickelodeon] executives and child molesters be brought to justice. #DanSchneider #quietonset,” and a caption referencing Schneider as an “alleged assaulter.” These postings were made on various platforms, under individuals’ handles, some of which appear to be a first and last name, while others we must hope are pseudonyms, such as “MrAverageViewer,” “kermittthefrog2311” and “Cowbells.” He seeks to introduce these statements as evidence that “viewers understood Defendants’ statements or implications . . . to mean that Schneider in fact committed crimes of child sexual abuse.” Defendants argue that the third-party statements should not be considered because “[t]he ‘dispositive question’ in [an implied defamation] case is ‘whether a reasonable fact finder could conclude the published statement declares or implies a 13 provably false assertion of fact.’ This is ordinarily a question of law for the court.” (Edward, supra, 72 Cal.App.5th at p. 790, quoting Franklin v. Dynamic Details, Inc., supra, 116 Cal.App.4th at p. 385; Couch v. San Juan Unified School District (1995) 33 Cal.App.4th 1491, 1500 (Couch) [“Whether published material is reasonably susceptible of an interpretation which implies a provably false assertion of fact—the dispositive question in a defamation action—is a question of law for the court”].) Whether there is evidence that selected readers did adopt the interpretation Schneider advances, Defendants argue, is of no relevance to the court’s analysis. Prior courts have agreed. In San Francisco Bay Guardian, Inc. v. Superior Court (1993) 17 Cal.App.4th 655, 660 (S.F. Bay Guardian), the court found that declarations by individuals who had read the offending newspaper article and did not recognize it as a parody did “not raise a question of fact as to the view of the average reader.” The court reasoned that the “question is not one that is to be answered by taking a poll of readers but is to be answered by considering the entire context in which the offending material appears.” (Ibid.; see also Couch, supra, 33 Cal.App.4th at p. 1503, fn. 9 [allegations that other readers interpreted the offending newspaper section in the same manner as plaintiff were insufficient to raise issue of fact because the viewpoint of the average reader cannot be ascertained in this way]; Polygram Records, Inc. v. Superior Court (1985) 170 Cal.App.3d 543, 556, fn. 15 [denying request to amend complaint to allege that individuals understood defendant’s statement to refer to plaintiff’s product where the court found that, as a matter of law, the statement could not be taken seriously].) 14  In support of the contrary position, Schneider cites Gaprindashvili v. Netflix, Inc. (C.D. Cal., Jan. 27, 2022, No. 2:21- cv-07408-VAP-SKx) 2022 WL 363537 (Gaprindashvili), in which a district court denied an anti-SLAPP motion where the petitioner, a trailblazing female chess champion, alleged that the remark in defendant’s film that she “ ‘has never faced men [at chess]’ ” was a false statement injurious to her reputation. (Id. at p. *7, italics and bold omitted.) Relying solely on the words used by defendants and their surrounding context in the film, the court determined that “[a]n average viewer easily could interpret the Line . . . as ‘disparaging the accomplishments of Plaintiff’ . . . [and that] such a falsehood ‘constitutes an injury to reputation.’ ” (Id. at p. *7, quoting Nguyen-Lam v. Cao (2009) 171 Cal.App.4th 858, 867.) The court also acknowledged that evidence that “viewers did in fact interpret the Line as defamatory . . . though not dispositive, supports the allegation that a ‘reasonable’ viewer would believe the line to be defamatory.” (Id. at p. *10.) However, evidence of the public’s response only “support[ed]” the finding the trial court already made that the challenged statement was susceptible to the claimed defamatory meaning; the trial court did not rely on evidence of the public’s response to make that finding.6 6 While courts have at times acknowledged third party statements that are consistent with their own conclusion that a work is susceptible to a defamatory interpretation, it is the court’s own analysis as a matter of law that controls. (See, e.g., Gaprindashvili, supra, 2022 WL 363537, at p. *7.) Further, reference to social media commentary, even when invoked to demonstrate the correctness of the court’s own conclusion, must be undertaken with extreme caution, given the inherent 15  Schneider cites additional cases where courts purportedly relied on evidence of the public’s reception, but those are equally unavailing. For instance, Schneider cites Montandon v. Triangle Publications, Inc (1975) 45 Cal.App.3d 938, where the court affirmed a jury verdict after trial finding that the defendant magazine published a description of socialite and author Pat Montanton that implied that she was a prostitute. The court in Montandon recounted the trial testimony, which included evidence that people, including fans of Ms. Montandon, interpreted the magazine’s statement to have that defamatory meaning. (Id. at pp. 943–944.) Schneider also cites another district court case, Denison Powerlifting Inc. v. Dorsey (C.D. Cal., Feb. 10, 2025, No. 8:23-cv-00744-JVS-KES) 2025 WL 1011783, where the trial court considered public comments on a video posted by the defendant on social media in opposition to defendant’s summary judgment motion. In neither case did the defendant argue that the public’s response was irrelevant; however, such a challenge would have unreliability of such content. (See, e.g., State v. Allcock (Vt. 2020) 237 A.3d 648, 654 [observing that Facebook removed over 3.3 billion fake accounts in 2018 and five billion fake accounts in 2019]; see also People v. Ware (2022) 14 Cal. 5th 151, 174 [recognizing that social media postings are “expression aimed at a particular audience. . . [and] may include an element of performance”]; Summit Bank v. Rogers (2012) 206 Cal.App.4th 669, 696–697 [“ ‘[A]ny reader familiar with the culture of . . . most electronic bulletin boards . . . would know that board culture encourages discussion participants to play fast and loose with facts. . . . Indeed, the very fact that most of the posters remain anonymous, or pseudonymous, is a cue to discount their statements accordingly.’ [Citation.]”].) 16 been unavailing because both cases involved the sufficiency of the evidence for a jury to conclude that defamation had occurred. California courts have long recognized that “[w]hether or not the [statement] is reasonably susceptible of this interpretation is a question for the court and, if so, whether or not it was so understood is a question for the jury.” MacLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536, 546; Balla v. Hall (2021) 59 Cal.App.5th 652, 686, quoting MacLeod, at p. 546 [same]; John Doe 2 v. Superior Court (2016) 1 Cal.App.5th 1300, 1312 [“ ‘[I]t is a question of law for the court whether a challenged statement is reasonably susceptible of [a defamatory] interpretation . . . . If that question is answered in the affirmative, the jury may be called upon to determine whether such an interpretation was in fact conveyed’ ”].) This is an important distinction, as the relevant question at the summary judgment and trial stage is whether the evidence supported—or could support—a jury’s conclusion that the challenged statement was in fact interpreted in a defamatory manner. Schneider’s cases are therefore inapposite.7 We agree with Defendants that the statements made by members of the public on various Internet sites are not relevant 7 Schneider additionally references Harvey v. Netflix (C.D. Cal., Sept. 27, 2024, No. 2:24-cv-04744-RGK-AJR) 2024 WL 4536639, *6, in which the trial court denied defendant’s anti-SLAPP motion finding that a reasonable person could have identified plaintiff as the subject of defendant’s story. Contrary to Schneider’s characterization, the trial court relied on its own evaluation of the facts to conclude that there were “strong and specific” similarities that would have allowed the public to identify plaintiff. (Ibid.) 17 to the court’s determination whether the work is susceptible to a defamatory interpretation as a matter of law. ii. Defamatory Elements in Quiet On Set “In examining whether a statement is false and defamatory, we look to the totality of the circumstances, which includes not only the words of the identified defamatory statement, but the context in which the statement was made. [Citation.] ‘[A] defamatory meaning must be found, if at all, in a reading of the publication as a whole.’ [Citation.] ‘Defamation actions cannot be based on snippets taken out of context.’ ” (Issa, supra, 31 Cal.App.5th at pp. 713–714.) Schneider contends that, despite this directive, Defendants’ trailer and documentary should be viewed and analyzed as separate works. This approach has been generally rejected by courts, with our Supreme Court cautioning that “ ‘ “the publication in question must be considered in its entirety; ‘[i]t may not be divided into segments and each portion treated as a separate unit.’ ” ’ ” (Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 261.) Focusing on a small piece of the offending work also impedes the court’s ability to consider how an average viewer would interpret the work, given that an average audience member would be more likely to receive the offending statements within the context of the whole. (See S.F. Bay Guardian, supra, 17 Cal.App.4th at p. 660 [“[o]nly a viewer that read only the fake letter . . . and looked at nothing else could miss the joke in this case, and that is not the average reader”].) However, to the extent courts have recognized that the audience is likely to receive something less than the whole, they have adjusted their contextual analysis accordingly. For instance, in Manzari, supra, 830 F.3d at p. 890, the defendant 18 newspaper argued that there could be no implied defamation where a large photo of the petitioner appeared under the headline “ ‘Porn industry shuts down after “female performer” tests positive for HIV’ ” because the article, when read in full, was “logically inconsistent with the inference that the actress in question was [petitioner].” In rejecting the newspaper’s argument, the Ninth Circuit noted that some viewers received the defamatory content—the headline and photo—independently from the article as it “spread rapidly” online, “truncated with the headline followed directly by [petitioner’s] photograph . . . but without the rest of the article to provide any further context for the image.” (Ibid.) Similarly, in Kaelin v. Globe Communications Corp. (9th Cir. 1998) 162 F.3d 1036, 1041, the Ninth Circuit reversed an order granting summary judgment in favor of the National Enquirer magazine while acknowledging that its allegedly defamatory headline accompanied an article that was entirely true. It held that the headline “COPS THINK KATO DID IT!” reasonably implied that the plaintiff, “Kato” Kaelin, was a suspect in the murder of Nicole Brown Simpson and Ronald Goldman. (Id. at p. 1037.) Even though the substantive article clarified that he was only suspected of perjury, the court observed that the corresponding story, 17 pages from the headline, “was too far removed from the cover headline to have the salutary effect [defendant] claims.” (Id. at p. 1041.) It further recognized that the magazine’s audience consisted of both its “ ‘ordinary reader . . . as well as those who merely glance at the headlines while waiting at the supermarket checkout counter.’ ” (Ibid., quoting Eastwood v. National Enquirer, Inc. (9th Cir. 1997) 123 F.3d 1249, 1256.) Thus, while the cases are consistent that the 19 allegedly defamatory elements of a work must be viewed in context, they also recognize that, when the average audience member may receive the defamatory elements divorced from the entire work, the analysis must reflect that reality. We believe it is appropriate, therefore, to independently analyze the Quiet on Set trailer, which was published and distributed separately from the Quiet on Set five-part documentary, and that doing so accurately reflects how an “average viewer” received Defendants’ work. The trailer was placed “into broadcast circulation” on February 8, 2024, while the documentary episodes began airing over a month later, on March 17, 2024. The documentary aired on the ID Network, and was simultaneously made available on HBO’s streaming platform. While the record does not describe how the trailer was circulated, it does reflect that it was, at minimum, posted on the ID Network’s YouTube page. Moreover, the purpose of a trailer is to advertise a film and is intended to reach a broader audience than those who will ultimately elect to watch the film in its entirety. Many of those who view the trailer may therefore have no interest in viewing the three-plus hour documentary, and the context provided by the entire work cannot be imputed to the viewers of the trailer. We therefore agree that under these circumstances, it is proper to determine whether the trailer—in its entirety, but standing apart from the five-part feature it teased—is reasonably subject to the implied defamatory meaning asserted by Schneider. We now turn to a detailed description of Quiet on Set and its trailer, including the specific elements that Schneider 20 contends support a defamatory interpretation to determine whether either is reasonably subject to a defamatory meaning.8 a. Additional factual background Quiet on Set Trailer Schneider identifies three specific excerpts from the Quiet on Set trailer that he asserts are defamatory by implication. First, he observes that after mentioning Schneider and his impact on both children’s television and the careers of several well-known child actors, the documentary inserts the logo of Investigation Discovery (ID Network), the cable network that produced Quiet on Set and, Schneider contends, is “dedicated to true crime documentaries.” The second contested excerpt is a voiceover stating that “[w]orking for Dan [Schneider] was like being in an abusive relationship. Dan’s treatment of people on his shows was an open secret,” followed closely by another voice asking “[h]ow safe can any kids be in that environment?” The “abusive relationship” statement is accompanied by images of adult women apparently on a television set. It is immediately followed by an additional 8 While the parties dispute the reasonable interpretation of the material, they do not dispute that the exhibits provided to the trial court reflect a true and correct copy of the works that are the subject of this controversy. To the extent the parties’ descriptions of these works differ, for instance with respect to the sequencing of images, the court relies upon its own independent review of the exhibits. The court has therefore adopted Schneider’s factual allegations in this recitation unless, after its own review, it has concluded that the record evidence cannot support Schneider’s description. (Barker v. Fox & Associates (2015) 240 Cal.App.4th 333, 348 [granting anti-SLAPP motion after review of emails that did not contain the statements as characterized by the plaintiff].) 21 voice-over from a woman stating that her “lawyer filed complaints; gender discrimination, hostile work environment, harassment” accompanied by images of what appears to be a complaint with the words “denied equal pay” and “sexually hostile work environment” highlighted. A few seconds later, the question is posed regarding kids’ safety, with the full statement: “How safe can any kids be in that environment. There would be even bigger problems down the line with actual pedophiles on set.” The third allegedly defamatory element in this trailer is the statement that “[t]here would be even bigger problems down the line with actual pedophiles on set,” combined with the observation that, to this point, Schneider remained the only person mentioned by name. Along with this, he identifies the trailer’s description of “horrific sexual crimes against children” shortly after this statement as further support for a defamatory interpretation. With respect to what is actually shown in the trailer, immediately after the statement regarding “actual pedophiles on set,” the trailer cuts to photographs of three men with a voiceover that states: “These are three predators who worked at Nickelodeon, all in a short amount of time.” None of the individuals depicted is Schneider. Schneider’s name is also not mentioned in the trailer at any point after this reference to predators. The reference to the crimes against children comes after displaying the three men’s images, and while the criminal acts are being discussed, there is an excerpt of what appears to be a legal document with the words “Peck coached the victim” highlighted. Finally, at the close of the trailer, a former child actor is asked if he had ever told his story before, and the trailer ends 22 with the question unanswered. According to Schneider, by not explicitly providing the identity of the child abuser “the implication remains that it was Schneider who perpetrated the crime.” Quiet on Set: Episode 1 The first element in this episode that Schneider claims supports a defamatory inference is the opening graphic, which states, “This series investigates the abuses experienced by children from the adults they were expected to trust. Viewer discretion is advised.” The second is an approximately one- minute montage of clips regarding Schneider’s success, including his receipt of a lifetime achievement award and references to him as a “golden boy” who “shaped children’s entertainment.” This brief segment ends with