Clifford v. Trump, 073120 FED9, 18-56351

Docket Nº:18-56351
Party Name:STEPHANIE CLIFFORD, AKA Stormy Daniels, Plaintiff-Appellant, v. DONALD J. TRUMP, Defendant-Appellee.
Judge Panel:Before: THOMAS, Chief Judge, and WARDLAW and NGUYEN, Circuit Judges.
Case Date:July 31, 2020
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

STEPHANIE CLIFFORD, AKA Stormy Daniels, Plaintiff-Appellant,

v.

DONALD J. TRUMP, Defendant-Appellee.

No. 18-56351

United States Court of Appeals, Ninth Circuit

July 31, 2020

NOT FOR PUBLICATION

Argued and Submitted February 4, 2020 Pasadena, California

Appeal from the United States District Court for the Central District of California S. James Otero, District Judge, Presiding D.C. No. 2:18-cv-06893-SJO-FFM

Before: THOMAS, Chief Judge, and WARDLAW and NGUYEN, Circuit Judges.

MEMORANDUM [*]

Stephanie Clifford appeals the district court's dismissal of her defamation action against President Donald J. Trump.1 We have jurisdiction under 28 U.S.C. § 1291. Reviewing de novo, we affirm.

1. The district court correctly concluded under the Erie doctrine that the motion to dismiss procedures of the Texas Citizens Participation Act (TCPA)- Texas's version of an anti-SLAPP law-apply in federal court. We have long held that analogous procedures in California's anti-SLAPP law apply in federal court, United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 973 (9th Cir. 1999), and the TCPA is indistinguishable from California's law in all material respects, compare S & S Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018) (describing the TCPA analysis), with Oasis W. Realty, LLC v. Goldman, 51 Cal.4th 811, 820 (2011) (describing California's anti-SLAPP analysis).

Though we recognize the Fifth Circuit recently held that the TCPA does not apply in federal court, Klocke v. Watson, 936 F.3d 240, 244-47 (5th Cir. 2019), the reasoning of the Fifth Circuit's opinion cannot be reconciled with our circuit's anti-SLAPP precedent, compare Newsham, 190 F.3d at 972 ("[T]here is no indication that [Federal Rules of Civil Procedure] 8, 12, and 56 were intended to 'occupy the field' with respect to pretrial procedures aimed at weeding out meritless claims."), with Klocke, 936 F.3d at 247 ("Rules 8, 12, and 56 provide a comprehensive framework governing pretrial dismissal and judgment." (cleaned up)). We are bound to follow our own precedent, which requires us to apply the TCPA.2 Miller v. Gammie, 335 F.3d 889, 892-93, 900 (9th Cir. 2003) (en banc).

Because the TCPA motion in this case challenged the legal sufficiency of the allegations in the complaint, we "apply the Federal Rule of Civil Procedure 12(b)(6) standard and consider whether a claim is properly stated." Planned Parenthood Fed'n of Am., Inc. v. Ctr. for Med. Progress, 890 F.3d 828, 834 (9th Cir. 2018).

2. The elements of a defamation claim under Texas law are (1) "the publication of a false statement of fact to a third party," (2) "that was defamatory concerning the plaintiff," (3) made with actual malice, [3] and (4) damages, in some cases. In re Lipsky, 460 S.W.3d 579, 593 (Tex. 2015). We conclude, like the district court, that the complaint failed to plausibly allege an actionable false statement of fact, though for slightly different reasons.

As alleged in the complaint, Ms. Clifford began an intimate relationship with Mr. Trump in 2006. Five years later, in 2011, Ms. Clifford agreed to cooperate with a magazine that intended to publish a story about the relationship. Ms. Clifford alleges that a few weeks after she agreed to assist with the magazine story, she was approached by an unknown man in a Las Vegas parking lot who told her "Leave Trump alone. Forget the story," and threatened that harm would come to her if she continued to cooperate with the magazine. Ultimately, the story was not published.

In 2018, after Mr. Trump became President, Ms. Clifford went public with her account of this incident. With the assistance of a sketch artist, she prepared a composite sketch of the man from the parking lot, which was disseminated publicly.

Ms. Clifford's defamation claim is based on a tweet Mr. Trump published about the composite sketch. Shortly after the sketch was released, a Twitter user unrelated to the parties here tweeted the sketch juxtaposed with a photograph of Ms. Clifford's ex-husband, with a mocking message suggesting that the two men resembled one another. Mr. Trump retweeted this tweet, adding his own message: "A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it)!"

The two tweets appeared together as depicted below:[4]

(Image Omitted)

Ms. Clifford responded by filing this suit, alleging that Mr. Trump's tweet is defamatory.

Under Texas law, as informed by the Supreme Court's First Amendment jurisprudence, "statements that are not verifiable as false are not defamatory. And even when a statement is verifiable, it cannot give rise to liability if the entire context in which it was made discloses that it was not intended to assert a fact." Dallas Morning News, Inc. v. Tatum, 554 S.W.3d 614, 638 (Tex. 2018) (cleaned up). Texas law refers to statements that fail either test-"verifiability or context"-as "opinion[s]." Id. The determination of whether a statement is "reasonably capable of a defamatory meaning" focuses on how...

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