Mitchell v. Twin Galaxies, LLC

• Decision Date: 12 October 2021
• Docket Number: B308889
• Citation: 70 Cal.App.5th 207,285 Cal.Rptr.3d 211
• Parties: William James MITCHELL, Plaintiff and Respondent, v. TWIN GALAXIES, LLC, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

70 Cal.App.5th 207

285 Cal.Rptr.3d 211

William James MITCHELL, Plaintiff and Respondent,

v.TWIN GALAXIES, LLC, Defendant and Appellant.

B308889

Court of Appeal, Second District, Division 8, California.

Filed October 12, 2021

Tashroudian Law Group and David A. Tashroudian, Woodland Hills, for Defendant and Appellant.

Manning & Kass, Ellrod, Ramirez, Trester, James E. Gibbons, Steven J. Renick and Anthony J. Ellrod, Los Angeles, for Plaintiff and Respondent.

OHTA, J.^*

William "Billy" Mitchell brought suit against Twin Galaxies, LLC for defamation and false light after Twin Galaxies issued a statement asserting Mitchell's world record scores in the Donkey Kong arcade game were not achieved on original unmodified hardware as required under its rules. As a result, it removed all of Mitchell's world record scores and banned him from participating in its leaderboards. The trial court denied Twin Galaxies’ special motion to strike under the strategic lawsuits against public participation statute (anti-SLAPP motion). ( Code Civ. Proc., § 425.16.) Because Mitchell showed a probability of prevailing on his claims, the trial court properly denied the anti-SLAPP motion. We affirm the order.

FACTS

Mitchell holds world records in several video games, including Donkey Kong and Pac-Man. In 1999, Mitchell achieved the first perfect score in the Pac-Man arcade game and was recognized as the "Video Game Player of the Century" by NAMCO, the maker of Pac-Man.

At issue in this case are three of Mitchell's world record scores for the arcade game Donkey Kong. For ease of reference, we refer to them as the "King of Kong score" in which he scored 1,047,200 points on December 28, 2004, the "Mortgage Brokers score" in which he scored 1,050,200 points on July 14, 2007, and the "Boomers score" in which he scored 1,062,800 points on July 31, 2010. Mitchell has appeared in several documentaries on competitive gaming, including a film titled The King of Kong: A Fistful of Quarters about an opponent's journey to the world record score for Donkey Kong.

Twin Galaxies was founded by Walter Day in 1982. Day partnered with videogame adjudicators, such as the International Video Game Hall of Fame and Guinness World Records, to facilitate and organize videogame competitions. From 1982 to 2014, Twin Galaxies adjudicated world records through on-site referees or by video. Video adjudication was introduced in the 1990s so players could participate from their homes remotely.

In 2014, Day sold Twin Galaxies to Jason "Jace" Hall. Hall is also a well-known figure in the video game industry with experience in video game design, function, and hardware. Twin Galaxies operates a website at www.twingalaxies.com, where, among other things, competitive video game rules are set, player performances are measured, and records may be viewed and challenged. The Twin Galaxies website also provides a forum for members to discuss all things related to video games.

Twin Galaxies publishes leaderboards on its website for thousands of video game titles across dozens of video game platforms, including arcade machines, game consoles, and emulation platforms such as Multiple Arcade Machine Emulator or M.A.M.E. The leaderboards recognize achievements for high score or fastest time, and they rank players in those, and other, categories. Records and rankings appearing on the Twin Galaxies leaderboards have been used by Guinness World Records in several Guinness World Records Gamer's Edition books and continue to be recognized as world records by the Guinness organization and others.

Twin Galaxies provides a process to dispute a score appearing on a leaderboard. Once a score dispute claim is submitted, it is placed into a public dispute voting forum where the gaming community will publicly discuss, debate, and vote on the veracity of the claim and present evidence to support or refute the score.

The Dispute Claim

Jeremy Young, who was registered through the Twin Galaxies website under the name "Xelnia," disputed Mitchell's King of Kong score, Mortgage Brokers score and Boomers score (the Disputed Scores). Young claimed the Disputed Scores were not achieved on original Donkey Kong arcade hardware as required under the rules. Instead, the Disputed Scores were achieved on an emulation platform such as the M.A.M.E. system. Young examined video tapes of the Disputed Scores and found certain images and anomalies which he asserted could not be produced by the original Donkey Kong arcade hardware. He believed those images could only be produced through the use of a M.A.M.E. system.

Young presented evidence that original Donkey Kong arcade printed circuit board (PCB) hardware draws the Donkey Kong levels frame-by-frame with the first frame drawing 1/2 portions of five girders, and the rest of the frames filling in those girders. Young presented evidence that the Donkey Kong game on emulation software – that is the game loaded on a computer other than a PCB – similarly draws the game's levels frame-by-frame, but with the first frame drawing three girders, with one girder having a protruding line which has been nicknamed the "girder finger."

Young posted screenshots from video footage of the Disputed Scores which showed Donkey Kong levels with three girders in the first frame, with one being the girder finger. There were other unexplained anomalies and artifacts in the footage which led him to believe the games played in the videos were inconsistent with original Donkey Kong arcade games.

Twin Galaxies posted digital copies of the video footage on its website, inviting its community members to investigate and comment on the dispute claim. It also conducted its own investigation of Young's dispute. On April 12, 2018, Twin Galaxies published the following statement:

"Based on the complete body of evidence presented in this official dispute thread, Twin Galaxies administrative staff has unanimously decided to remove all of Billy Mitchell's scores as well as ban him from participating in our competitive leaderboards.

We have notified Guinness World Records of our decision.

On 02-02-2018 Twin Galaxies member Jeremey Young (@xelnia) filed a dispute claim assertion against the validity of Billy Mitchell's historical and current original arcade Donkey Kong score performances of 1,047,200 (the King of Kong "tape"), 1,050,200 (the Mortgage Brokers score), and 1,062,800 (the Boomers score) on the technical basis of a demonstrated impossibility of original unmodified Donkey Kong arcade hardware to produce specific board transition images shown in the videotaped recordings of those adjudicated performances.

[¶] ... [¶]

Twin Galaxies has meticulously tested and investigated the dispute case assertions as well as a number of relevant contingent factors, such as the veracity of the actual video performances that the dispute claim assertions rely upon.

In addition to Twin Galaxies’ own investigation into the dispute case assertions, at least two different 3rd parties conducted their own explorations and came to identical conclusions.

Most notable was the 3rd party (Carlos Pineiro) that Billy Mitchell engaged to help examine the dispute case claims on his behalf, utilizing whatever original equipment Billy could provide, whose final finding was consistent with Twin Galaxies investigation and others.

[¶]

Here are our specific findings:

- The taped Donkey Kong score performances of 1,047,200 (the King of Kong "tape"), 1,050,200 (the Mortgage Brokers score) that were historically used by Twin Galaxies to substantiate those scores and place them in the database were not produced by the direct feed output of an original unmodified Donkey Kong Arcade PCB.

- The 1,062,800 (the Boomers score) Donkey Kong performance does not have enough of a body of direct evidence for Twin Galaxies to feel comfortable to make a definitive determination on at this time .

[¶] ... [¶]

From a Twin Galaxies viewpoint, the only important thing to know is whether or not the score performances are from an unmodified original DK arcade PCB as per the competitive rules. We now believe that they are not from an original unmodified DK arcade PCB, and so our investigation of the tape content ends with that conclusion and assertion.

[¶]

Twin Galaxies has also investigated this matter as comprehensively as reasonably possible to make sure that its findings are as informed as possible.

[¶] ... [¶]

With this ruling Twin Galaxies can no longer recognize Billy Mitchell as the 1st million point Donkey Kong record holder. "

The statement was distributed to the public through Twin Galaxies’ website and social media platforms, where it garnered media attention from mainstream news outlets such as The New York Times, The Washington Post, and Variety. The media reported Twin Galaxies removed Mitchell's world records and banned him because he cheated. Mitchell twice demanded a retraction, which Twin Galaxies denied. After initially stripping Mitchell of his world records, Guinness World Records reinstated them on June 18, 2020, after it conducted its own investigation.

The Lawsuit

Mitchell brought suit against Twin Galaxies for defamation and false light, alleging Twin Galaxies implied he cheated to achieve his scores. Mitchell further alleged special damages arose from the defamation because he uses the notoriety associated with his professional gaming reputation to promote his hot sauce company, Rickeys’ Hot Sauce.

Twin Galaxies’ anti-SLAPP motion

Twin Galaxies filed an anti-SLAPP motion, contending its statement arose from protected activity and Mitchell could not establish a probability of success on each of his causes of action. In support of its anti-SLAPP motion, Twin Galaxies submitted a declaration from Hall detailing the company's investigation of the dispute claim. Hall stated he obtained two sets of copies of the video tapes for the King of Kong score and the Mortgage Brokers score from two separate sources previously affiliated with Twin Galaxies. After he confirmed the...