SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA ) ) ) ) ) ) ) ) ) )

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1 MARK GOLDOWITZ, # 1 CALIFORNIA ANTI SLAPP-PROJECT 0 Sacramento Street Berkeley, CA 0 Phone: ( -1 x 01 Fax: ( -0 Special Counsel for Defendants DOE a/k/a richwill1 and DOE a/k/a benderanddundat SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA EAGLE BROADBAND, INC., Plaintiff, v. DOES 1 through, inclusive, Defendants. CASE NO.: 1-0-CV001 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT SPECIAL MOTION TO STRIKE BY DEFENDANTS DOE A/K/A RICHWILL1 AND DOE A/K/A BENDERANDDUNDAT, PURSUANT TO C.C.P..1 Date: February, 00 Time: :00 a.m. Dept.: Judge: Hon. William J. Elfving Complaint Filed: October, 00 Trial Date: None Set [Filed in conjunction with defendants declarations, compendium of federal authorities, and proof of service of reply papers]

2 TABLE OF CONTENTS INTRODUCTION... 1 I. DEFENDANTS MET THEIR BURDEN OF SHOWING THAT THE COMPLAINT ARISES FROM DEFENDANTS EXERCISE OF THEIR SPEECH RIGHTS AND IS THEREFORE COVERED UNDER SUBDIVISION (e( OF THE ANTI-SLAPP LAW A. The Yahoo! Finance Message Board Is a Public Forum B. Defendants Posts about Plaintiff, a Publicly-Traded Corporation, Were Made in Connection with an Issue of Public Interest II. C. The Complaint Is Not Exempt from the Anti-SLAPP Statute Pursuant to Section.1(c... PLAINTIFF DID NOT ESTABLISH A PROBABILITY OF PREVAILING ON ITS CLAIMS AGAINST DEFENDANTS RICHWILL1 AND BENDERANDDUNDAT, AND THEREFORE ITS COMPLAINT MUST BE DISMISSED AS TO THESE DEFENDANTS.... A. Plaintiff Has Not Shown a Probability of Prevailing on Its Claims Against Defendant Richwill The Post by Richwill1 Is Parody Protected by the First Amendment..... Plaintiff Has Not Shown That Richwill1 s Post Was an Unlawful, Unfair, or Fraudulent Business Act or Practice Prohibited by Business and Professions Code Sections 100 et seq.... a. Richwill1 s Post Is Not a Business Act or Practice or Advertising... b. Securities Transactions Are Not Covered Section c. Plaintiff Has Not Shown That It Suffered Any Damage as a Result of Richwill1 s Post..... Plaintiff Has Not Shown That Richwill1 s Post Was Actionable Defamation.... B. Plaintiff Has Not Shown a Probability of Prevailing on Its Claims Against Defendant Benderanddundat Plaintiff Has Not Shown That Benderanddundat s Post Was an Unlawful, Unfair, or Fraudulent Business Act or Practice Prohibited by Business and Professions Code Sections 100 et seq.... a. Plaintiff Has Not Shown That Benderanddundat s Post Contains Any False Statement of Fact.... b. Plaintiff Has Not Shown That It Suffered Any Damages From Benderanddundat s Post.... i

3 . Plaintiff Has Not Shown That Benderanddundat's Post Was Actionable Defamation.... a. Plaintiff Has Not Pled and Proved that Benderanddundat Has Made a Provably False Statement.... b. Plaintiff Has Not Shown Any Damage as a Result of Benderanddundat s Post ii

4 TABLE OF AUTHORITIES FEDERAL CASES Dworkin v. Hustler Magazine (th Cir. 1 F.d... Strigliabotti v. Franklin Resources (N.D.Cal WL... STATE CASES Ampex Corporation v. Cargle (00 1 Cal.App.th , Averill v. Superior Court (1 Cal.App.th 0... Baker v. Los Angeles Herald Examiner (1 Cal.d...,, Barrett v. Rosenthal, S1... Blatty v. New York Times (1 Cal.d... Bowen v. Ziasun Technologies (00 Cal.App.th... Church of Scientology v. Wollersheim (1 Cal.App.th... ComputerXpress v. Jackson (001 Cal.App.th... 1, Couch v. San Juan Unified School District (1 Cal.App.th... Equilon Enterprises v. Consumer Cause (00 Cal.th... Kahn v. Bower ( Cal.App.d 1..., Kasky v. Nike (00 Cal.th... Leonardini v. Shell Oil (1 1 Cal.App.d... Navellier v. Sletten (00 Cal.th..., Navellier v. Sletten (00 Cal.App.th... Rosenauer v. Scherer (001 Cal.App.th 0... Roskind v. Morgan Stanley Dean Witter (000 0 Cal.App.th... San Francisco Bay Guardian v. Superior Court (Sparks (1 1 Cal.App.th..., Vargas v. City of Salinas (00 1 Cal.App.th , Wilson v. Parker, Covert & Chidester (00 Cal.th... FEDERAL STATUTES U.S.C iii

5 STATE STATUTES 1 1 Civil Code... (a..., Code of Civil Procedure ,,.1 (e(... 1,.1 (c...,.1 (c(1... Business & Professions Code 100 et seq (Unfair Competition Law...,, , iv

6 INTRODUCTION. This lawsuit is an effort by a financially troubled company to silence its critics and a public relations ploy (filed two weeks before the annual shareholders meeting to create an illusion that its management is looking out for shareholders interests. (See Mould Decl., 1, 1; Reynolds Decl., -. After all, it is much simpler to blame and sue Internet posters than to build and grow a successful business. As set forth below and in defendants moving papers, plaintiff s claims against defendants are subject to the anti-slapp law and plaintiff has not shown a probability of prevailing on them. Therefore, defendants special motion to strike the Complaint should be granted, and this SLAPP should be dismissed as to Does and. I. DEFENDANTS MET THEIR BURDEN OF SHOWING THAT THE COMPLAINT ARISES FROM DEFENDANTS EXERCISE OF THEIR SPEECH RIGHTS AND IS THEREFORE COVERED UNDER SUBDIVISION (e( OF THE ANTI- SLAPP LAW. On a special motion to strike, the initial burden is on the defendant to make a threshold, prima facie showing that the claims arise from petition or speech covered by the anti-slapp law. (Vargas v. City of Salinas (00 1 Cal.App.th 1,. Defendants richwill1 and benderanddundat did that in their moving papers. (Memo :1-:. As discussed below, plaintiff has not rebutted defendants prima facie showing. A. The Yahoo! Finance Message Board Is a Public Forum. In their moving papers, defendants cited two cases holding that Internet finance message boards are public fora for purposes of the anti-slapp law. (Memo :1-1, citing Ampex Corporation v. Cargle (00 1 Cal.App.th 1, 1, and ComputerXpress v. Jackson (001 Cal.App.th, 0-0. Plaintiff argues that the Yahoo! Finance board is not a public forum because it places restrictions on who may post and what content may be posted. (Opp. :-; :-:. Plaintiff not only cites no authority to support this argument, but also ignores Ampex, which expressly held the Yahoo! message board to be a public forum: Web sites that are accessible free of charge to any member of the public where members of the public may read the views and information posted, and post their own opinions, meet the definition of a public forum for purposes of section Thus the Yahoo! message board maintained for Ampex was a public forum. (Ampex, supra, citing ComputerXpress, supra; see also Wilbanks v. Wolk (00 1

7 Cal.App.th,, [private website on which public could not post is a public forum]; Annette F. v. Sharon S. (00 Cal.App.th, 1, [letter to editor is statement made in a public forum]; Damon v. Ocean Hills Journalism Club (000 Cal.App.th, - [private newsletter is a public forum]. 1 B. Defendants Posts about Plaintiff, a Publicly-Traded Corporation, Were Made in Connection with an Issue of Public Interest. In their moving papers, defendants demonstrated that their posts concerned an issue of public interest the management, operation, and financial prospects of a publicly-traded corporation. (Memo :0-:. Plaintiff ignores this and simply asserts that, Assuming Defendants are competitors of Eagle Broadband, their posts do not involve a matter of public interest. (Opp. :-1. However, the Complaint makes no such allegation and plaintiff provides no evidence to support it. In fact, defendants are not competitors of plaintiff (and have not shorted its stock; rather, they are shareholders with an interest in the share price going up. (Williams Decl., -; Mould Decl., -. Further, Internet postings about corporate activity constitute an issue of public importance.... (Ampex, supra, at p. 1. Plaintiff also argues that defendants were not exercising their First Amendment rights because their speech was false and was made on a private Internet site. (Opp. :1-:. However, the only case cited by plaintiffs does not involve section.1 or the Internet. In fact, as previously discussed, the cases make clear that statements on financial message boards about a publicly traded corporation are covered by subdivision (e( of the anti-slapp law. (Ampex, supra [Yahoo!]; ComputerXpress, supra. In addition, the validity of a defendant s speech bears only on the second prong of section.1 (probability of prevailing not the first (applicability of the statute. (Navellier v. Sletten (00 Cal.th, -. C. The Complaint Is Not Exempt from the Anti-SLAPP Statute Pursuant to Section.1(c. Plaintiff also argues that the Complaint is exempt from the anti-slapp law pursuant to 1 Further, this issue is not before the Supreme Court in Barrett v. Rosenthal, S1, as plaintiff incorrectly asserts. (Opp. :-:1. Rather, that case involves the scope of immunity for Internet reposting under U.S.C. 0. (Goldowitz Decl.,.

8 C.C.P..1(c, based on its assumption that defendants are competitors of plaintiff. (Opp. :-:. However, plaintiff has presented no evidence to support this previously unalleged claim, which is not true, as noted above. Defendants posts were not made to promote transactions in, or in the course of delivering, defendants goods or services. Thus,.1(c does not apply. (Williams Decl., -, ; Mould Decl.,,, ; see.1(c(1. II. PLAINTIFF DID NOT ESTABLISH A PROBABILITY OF PREVAILING ON ITS CLAIMS AGAINST DEFENDANTS RICHWILL1 AND BENDERANDDUNDAT, AND THEREFORE ITS COMPLAINT MUST BE DISMISSED AS TO THESE DEFENDANTS. Once a defendant has made a prima facie showing that the lawsuit arises from petition or speech activity covered by section.1, as defendants have done here, the burden shifts to the plaintiff to establish a probability of prevailing on its claims. To do this, a plaintiff responding to an anti-slapp motion... must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment... (Wilson v. Parker, Covert & Chidester (00 Cal.th, 1 [internal citations and punctuation omitted]. Plaintiff must meet its burden with competent, admissible evidence. (Vargas v. City of Salinas, supra. Plaintiff s Complaint alleges causes of action for unfair business practices and defamation. As to defendants richwill1 and benderanddundat, the Complaint alleges only one allegedly actionable post by each. (See Complaint 1, -, and Exhibits A and H thereto. As discussed below, plaintiff has failed to show that either of its causes of action have any merit as to these two defendants. A. Plaintiff Has Not Shown a Probability of Prevailing on Its Claims Against Defendant Richwill1. 1. The Post by Richwill1 Is Parody Protected by the First Amendment. Parody is protected by the First Amendment because it does not convey a provably false assertion of fact. For instance, in Baker v. Los Angeles Herald Examiner (1 Cal.d,, plaintiff, the producer of a television documentary on sex education, sued for the publication of a review of the documentary based on the reviewer s statement that My impression is that [the producer]... told his writer/producer... We ve got a hot potato here let s pour on titillating innuendo and as much bare flesh as we can get away with. Viewers will

9 eat it up. The Supreme Court noted that the principle that defamation requires a falsehood is grounded in the First Amendment itself and held that this passage was not actionable because the average reader could not have reasonably understood that the review stated that the purported quotation was something that the producer had actually said. (Id. at pp., -. In San Francisco Bay Guardian v. Superior Court (1 1 Cal.App.th,, a landlord sued a newspaper for publishing a fake letter, purportedly written by the landlord, which said I don t understand why Vince Bielski is so upset about electroshock therapy. I find that my tenants who have undergone this treatment are much more cooperative. Even though plaintiff submitted five declarations stating that the declarants did not recognize the letter as a parody, the court nonetheless concluded that the average reader, as a matter of law, would recognize that the letter was a... parody and not actually written by [plaintiff]. (Id. at p.. Therefore, the court held, the letter does not defame [plaintiff] by false attribution or presentation of false facts. (Id. at p. 1. Here, richwill1 s post is unquestionably a parody. It was a take-off on the press release that plaintiff issued on June, 00, when it was added to the Russell 000 Index. (See 1 Clifford Decl., Exhibit D. About a year later, plaintiff was removed from that Index (Clifford Supp.Decl., Exhibit B, which led to the parody press release. (Williams Decl.,. Indeed, richwill1 re-posted plaintiff s June 00 press release minutes before posting the parody in reply. (See Williams Decl., -1, and Clifford Supp.Decl., Exhibits C and D. The parody press release purports to be issued by plaintiff, quoting plaintiff s Chairman and CEO as saying that Eagle s deletion from the Russell 000 Index was a clear recognition of plaintiff s Although plaintiff here is a public figure (see memorandum filed by Does and, :-, First Amendment protection of parody is not limited to suits by public figures. (See, e.g., Couch v. San Juan Unified School District (1 Cal.App.th, 1-, 10-0 [high school campus security officer could not recover for publication of a parody]. Plaintiff asserts that it has never been listed on the Russell 000 Index Fund. (Opp. :-, citing Reynolds Decl.,. However, this is not true, according to Russell s website (Clifford Supp.Decl., and Exhibit B; indeed, plaintiff sent out a press release in June 00 entitled Eagle Broadband added to Russell 000 Index. (Clifford Decl., Exhibit D.

10 continued failures in executing our business plan over the last year, a reflection of our continued stagnation, worsening financials and decreased market capitalization, and an indication of further customer rejection of Eagle s technology and services, the indifference of our employees and our continued focus on eroding shareholder value. (Complaint, 1, Exhibit A. Plaintiff asserts that this parody press release has the look and feel of a corporate press release. (Opp. :-1; see also :-:1 It does, superficially that s the whole idea of a parody. However, the average reader could not reasonably believe that plaintiff had actually issued such a press release with its Chairman/CEO making such negative statements about his company and its continued focus on eroding shareholder value. This press release was a recognizable and non-actionable parody, just as much as the fake letter in San Francisco Bay Guardian or the fake quotation in Baker. Indeed, there is no evidence that anybody sreiously believed that the parody release was a real Eagle Broadband press release, and richwill1 posted two subsequent posts on the same day which indicated that it was not. (Clifford Supp.Decl., Exhibits E and F; Williams Decl., 1. This First Amendment defense applies to both causes of action in plaintiff s Complaint. (Blatty v. New York Times (1 Cal.d, - [ First Amendment limitations are applicable to all claims, of whatever label, whose gravamen is the alleged injurious falsehood of a statement... ].. Plaintiff Has Not Shown That Richwill1 s Post Was an Unlawful, Unfair, or Fraudulent Business Act or Practice Prohibited by Business and Professions Code Sections 100 et seq. Plaintiff s first cause of action is for unfair business practices, in violation of the Unfair Competition Law (UCL, Business and Professions Code sections 100 et seq. (Complaint, -0. This claim against richwill1 is without merit for at least three reasons, in addition to the First Amendment infirmity discussed above. a. Richwill1 s Post is Not a Business Act or Practice or Advertising. The Unfair Competition Law defines acts of unfair competition as follows:

11 As used in this chapter, unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1 (commencing with Section 100 of Part of Division of the Business and Professions Code. (B&PC 100. Section 100 applies only to advertising. (see B&PC 100; see also Kasky v. Nike (00 Cal.th, 1 [ 100 proscribes false or misleading advertising]. Plaintiff has provided no evidence or authority that richwill1 s post was a business act or practice or advertising. Indeed, this post was not connected to richwill1 s business. (Williams Decl., -,. Therefore, plaintiff has failed to show that richwill1 violated this statute. b. Securities Transactions Are Not Covered by Section 100. Plaintiff states that federal law does not pre-empt section 100 claims, citing Roskind v. Morgan Stanley Dean Witter (000 0 Cal.App.th. (Opp. 1:1-0, 1:1-1. However, as noted in Bowen v. Ziasun Technologies (00 Cal.App.th, -0, Roskind merely held that federal securities laws do not pre-empt section 100 claims. After a detailed analysis of state and federal cases, Bowen concluded that section 100 does not apply to securities transactions. (Id. at p. 0, quoted with approval in Feitelberg v. Credit Suisse First Boston (00 1 Cal.App.th, 0. Plaintiff argues that Bowen is not applicable because it dealt with fraud in the purchase of securities and the purchase or sale of securities is tangential to Eagle s claim. (Opp. 1:0-1:. However, this is not correct the Complaint alleges that defendants posts are part of stock market manipulation schemes designed to deflate the price of Eagle Broadband stock and reap illegal gains from short sales. (Complaint, 1:-, 1-1; see also Opp. 1:-. Thus, the Complaint is expressly based on allegedly illegal short sales of stock, which undeniably involves securities transactions. Strigliabotti v. Franklin Resources (N.D.Cal WL, cited by plaintiff (Opp. 1:-1, is not applicable because it does not involve the purchase or sale of securities (as does this case and Bowen; indeed, it may not even be a published opinion. Therefore, the Complaint does not allege a valid UCL claim. c. Plaintiff Has Not Shown That It Suffered Any Damage as a Result of Richwill1 s Post. A UCL claim can only be brought, as relevant here, by a person who has suffered injury

12 in fact and has lost money or property as a result of such unfair competition. (B&PC 10, as amended by Proposition, effective //0. However, plaintiff has not shown that it suffered injury in fact and lost money or property as a result of richwill1 s post. Although plaintiff generally alleges that the price of its stock fell because of the posts of the seven defendants (Complaint,,, it has produced no evidence to indicate that richwill1 s post produced such a result. In fact, the record indicates to the contrary. Richwill1 s post was posted on June, 00, a Friday, at :1 p.m., after the stock market had closed. (See Complaint, Exhibit A. That day, plaintiff s stock closed at cents per share. On Monday, June 1, 00, plaintiff s stock opened at cents, reached a high of cents, and closed at 1 cents. The next day, June 1, it closed at cents, up cents. Before richwill1 s post, from January, 00, through June, 00, plaintiff s stock price had already dropped from cents to cents, with no help from richwill1. (Clifford Supp.Decl., Exhibit BB. Further, plaintiff s purported expert merely speculates that a decline in plaintiff s share price could lead to losses for plaintiff. (Flaherty Decl.,. Thus, there is no evidence that richwill1 s parody post caused plaintiff s stock price to decrease, much less any damages to plaintiff. Plaintiff s failure to show any damages is an indication that this is a meritless SLAPP. (Averill v. Superior Court (1 Cal.App.th 0,.. Plaintiff Has Not Shown That Richwill1 s Post Was Actionable Defamation. Plaintiff s second cause of action is for defamation. (Complaint, 1-. As discussed above, this claim is without merit as to richwill1 because said defendant s post was parody protected by the First Amendment. (See II-A-1. In addition, Civil Code section a states in relevant part that Defamatory language not libelous on its face is not actionable unless the plaintiff alleges and proves that he has suffered special damage as a proximate result thereof. However, the Complaint does not allege, and plaintiff has not shown, that said post constituted libel on its face (it does not accuse plaintiff of criminal conduct or the like, and plaintiff has not shown that it has suffered special damages as a result of said post. (See II-A--c. Further, plaintiff asserts that its defamation claims are for trade libel (Opp. :, which requires a

13 showing of special damages. (Leonardini v. Shell Oil (1 1 Cal.App.d,. B. Plaintiff Has Not Shown a Probability of Prevailing on Its Claims Against Defendant Benderanddundat. Similarly, plaintiff s claims against benderanddundat have no merit. It appears that plaintiff has sued him because he has been a vocal critic of plaintiff s management and had publicly encouraged a shareholders suit. (Mould Decl., Plaintiff Has Not Shown That Benderanddundat s Post Was an Unlawful, Unfair, or Fraudulent Business Act or Practice Prohibited by Business and Professions Code Sections 100 et seq. Plaintiff s first cause of action for violation of the UCL is without merit as to benderanddundat for at least four reasons: (1 securities transactions, which are alleged by plaintiff, are not covered by the UCL (see II-A--b; and plaintiff has not shown: ( that defendant s post was a business act or practice or advertising (see II-A--a, ( that benderanddundat made a false statement (see below, or ( damages (see below. a. Plaintiff Has Not Shown That Benderanddundat s Post Contains Any False Statement of Fact. The requirement that speech contain a false statement of fact applies not just to defamation claims, but to all claims seeking to impose civil liability for speech not otherwise outside the protection of the first amendment. (Dworkin v. Hustler Magazine (th Cir. 1 F.d,, fn.. However, plaintiff has not shown that benderanddundat s post contains any false statement of fact, as discussed below at II-B--a. Therefore, plaintiff s UCL claim against this defendant is without merit. b. Plaintiff Has Not Shown That It Suffered Any Damages From Benderanddundat s Post. As discussed above, plaintiff must show actual injury to establish a violation of the UCL. (See II-A--c. Plaintiff has not met this burden. Plaintiff alleges that on the day of benderanddundat s post, Monday, January, 00, plaintiff s stock closed five cents lower than it opened. (Complaint, -. However, there is no evidence that benderanddundat s post caused any of this drop. First, it appears that the probable cause for this drop was plaintiff s filing notice with the SEC, after the close of the market the previous Friday, that it was going to

14 increase the number of outstanding shares by about 1%, thereby naturally decreasing the value of each share. (Clifford Supp.Decl., Exhibit K; Mould Decl., -1. Second, the decline of plaintiff s stock price on the day of the post occurred before the post was made; the share price actually increased that day after the post! (Mould Decl., 1, and Exhibit D. Third, this was one of hundreds of posts on the EAG message board on that date. (According to plaintiff, the average number of monthly posts on this board is,000 (Complaint 1(b, which means more than 0 per day. Fourth, plaintiff s share price was already in a strong downward trend. (Clifford Decl.,, Exhibit E; Clifford Supp.Decl., Exhibit AA. The brutal truth is that plaintiff has consistently lost millions of dollars a year since its fiscal year 000, and had just announced that it was going to dilute its shares by 1%. Its stock price quite logically declined as a result. (Mould Decl., -1, 1, Exhibits A-C; Clifford Decl., Exhibit A; Clifford Supp.Decl., Exhibits H-K, O, X, and Z. Plaintiff has not shown that this post caused any part of this decline, much less any damages to plaintiff. (See II-A--c.. Plaintiff Has Not Shown That Benderanddundat's Post Was Actionable Defamation. Plaintiff s second cause of action for defamation is without merit as to benderanddundat, because plaintiff has not pled and proved a false statement or shown damages. a. Plaintiff Has Not Pled and Proved that Benderanddundat Has Made a Provably False Statement. In a special motion to strike, the pleadings frame the issue to be decided. (Church of Scientology v. Wollersheim (1 Cal.App.th,, disapproved on another point in Equilon Enterprises v. Consumer Cause (00 Cal.th, fn.. The plaintiff must state and substantiate a legally sufficient claim. (Navellier v. Sletten (00 Cal.th,. A complaint for libel must specifically identify, if not plead verbatim, the words constituting the allegedly libelous statement. (Kahn v. Bower ( Cal.App.d 1,, fn.. To be libelous, a statement must be provably false. (Civil Code ; Baker, supra, at p.. Plaintiff s Complaint alleges that benderanddundat s January, 00, post contains two false factual assertions: (1 that Eagle Broadband was suffering from continued financial losses causing the share price to drop (Complaint, ; and ( it contained information

15 concerning Plaintiff s purported inability to sell a key product line essential to its business. (Id.,. Plaintiff makes no effort to show that these statements are false (indeed, the second one was not even in the post and plaintiff has therefore effectively abandoned these claims. Instead, plaintiff argues that two other statements are false: that plaintiff is out of cash and owes Aggregate $ million. (See Opp. :-1. However, these statements are not specifically identified in the Complaint and therefore cannot be the basis of a claim for defamation. (Kahn v. Bower, supra. In addition, plaintiff has not proved that these statements were false when they were made, on January, 00. Plaintiff s only evidence in this regard is a declaration dated January 1, 00, which states that Eagle Broadband is not out of cash and Eagle Broadband does not owe Aggregate any amount. (Reynolds Decl., 1 [emphasis added], cited in Opp. :1-1. This statement regarding Eagle s finances in January 00 does not prove that defendant s statements made a year earlier were false. Defendant had ample basis to make these statements and they were not made with actual malice. (Mould Decl., 1-1; Clifford Supp.Decl., Exhibits H M, X and Z. Indeed, the gist of the out of cash statement is true. (Mould Decl., 1. In any case, the out of cash statement was at worst nonactionable hyperbole. (Mould Decl., 1(h; Rosenauer v. Scherer (001 Cal.App.th 0, 0 [ hyperbolic language... is constitutionally protected ]. Thus, plaintiff has not pled and proved that benderanddundat made a false statement. b. Plaintiff Has Not Shown Any Damage as a Result of Benderanddundat s Post. The defamation claim is also without merit as to said defendant because plaintiff has not shown any damages, as discussed above in II-B-1-b. This failure is fatal to plaintiff s defamation claim against benderanddundat because the Complaint does not allege, and the allegations against said defendant do not constitute, libel on its face. (See Civil Code a. Dated: February 1, 00 Respectfully submitted, Mark Goldowitz, Special Counsel for Defendants Does and