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categories ofspeech are unprotected because they consist of"utterances [that] are no essential

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part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and

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morality." Id. at 572. These categories include, among others, defamation. United States
Stevens,559 U.S. 460, 460 (2010). When the speaker is not a public figure, states may

v.

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permissibly "define for themselves the appropriate standard of [defamation] liability." Gertz

y.

Welch,4l8 U.S. 323,347

(l97q.tl

In California, defamation is statutorily defined as consisting of either libel or slander. Cal.

Civ. Code $ 44. Libel is "a false and unprivileged publication by writing . . . which exposes any
person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided,

or which has a tendency to injure him in his occupation." Id. at $ 45.12 See olso Nygard, Inc. v.

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Uusi-Kerttula, 159 Cal. App. 4th 1027,1047 (2008). The key requirement of a defamation claim
is "the existence of a falsehood." Letter Carriers v. Austin,4l8 U.S. 264 (1974). In other words, the plaintiff must present evidence of a factual statement that is "provably false." Nygard,159 Cal. App. 4that 1048; see also Seeligv. Infinity Broadcasting Corp.,97 Cal. App. 4th 798, 809 (2002). To make a determination whether a statement is "provably false," courts consider the

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totality of the circumstances. Id. at 809. First, a court will consider the language of the statement

itself. "[R]hetorical hyperbole," "vigorous epithet[s]," and figurative language

are not considered

defamatory. Ferlauto v. Homsher,T4 CaL App. 4th 1394,l40l (1999). Next, a court examines Petitioner's position is contradictory in that it concludes that the law of the jurisdiction where the claim is brought controls whether a prima facie case has been made, which is the U.K. in this case, but yet demands compliance with U.S. law for the same. For example, Petitioner's attempts to argue that the "actual malice" standard in the U.S., which governs when a defamation plaintiff is a public figure, is relevant here. (See Mot. to Quash at 5 (citing New York Times v. Sullivan, 376 U.S. 254 (1964).) Petitioner has provided no evidence or authority suggesting that Respondent, or any similarly situated businessman, is a public figure. There is no evidence that Respondent has either achieved "pervasive fame or notoriety" in this country or is a limited public figure due to his participation in "a particular public controversy." Gertz,4l8 U.S. at35l; see also id. at35l-52 (holding that petitioner attorney was a private individual even though he was active in community and public afflairs). Even if Respondent is a prominent businessman in St. Lucia, it does not follow that he is in the public eye in the United States. Petitioner's entire argument in this regard is simply another red herring. " California's definition of defamation is extremely similar to the U.K.'s definition. Compare 32 Halsbury's Laws of England at $$ 510, 555 with Cal. Civ. Code gg 44-45.
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Opp. to Mot. to Quash

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the context in which the statement was made, including "the knowledge and understanding of the
audience to whom the publication was directed." Seelig,97 Cal. App. 4th at 809-10.

Here Petitioner made "provably false" assertions in the offending article given his use

of

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definite language in the article. Specifically, Petitioner suggested that Respondent caused the bankruptcy of the resort, that he improperly lined his own pocket by buying resort condominiums
at an

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artificially low price and selling them at an artificially high price, and that he had

conflict

of interest by being both a sales agent and a resort manager. (Gobat Decl. flfl 20,21.)
The language of these statements is neither rhetorical hyperbole nor figurative language. The statements set forth definite allegations about Respondent's business dealings and clearly

reflect negatively on his business reputation. A reasonable reader of the article at issue would
understand Petitioner to be making actual, "provably false," assertions regarding Respondent's

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conduct. A reasonable reader would not understand Petitioner to be merely asserting an opinion.
The article is not'ocautiously phrased in terms of apparency." Baker v. Los Angeles Herald

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Exam'r,42 CaL.3d254,260 (L986). Rather, the article is phrased in terms of definite knowledge.
(Gobat Decl. !f l6,Tab 3 (stating that the resort was "flnancial[1y] defunct" and o'almost

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bankrupt," and that Respondent was responsible for inflated sales prices of resort condominiums).)

Additionally, Petitioner made the offending statements in the context of an article that
attempts to expose underhanded business dealings in St. Lucia. Those who read the article would
have the impression that Petitioner was serious in his accusations. Indeed, the tone of the article

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further supports that the statements are factual contentions. See, e.g., Krinsky, 159 Cal. App. 4th at ll76-77 (holding that potentially factual assertions that
a

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person had filed for bankruptcy and

had a fake medical degree would not be taken seriously in light of additional accusations that that person "roughed up some patients, shares a rolls royce and a bently [sic] with the President and a

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$l5mm [sic] mansion" and was a "pathetic loser[]"). The Petitioner outlandish personal
accusations. Rather, Petitioner focuses on Respondent's conduct. In other words, Petitioner is not ridiculing Respondent, see id. at

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ll47,but is making

serious and substantive charges about

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his St. Lucian business dealings.13

Based on the above analysis, Petitioner has clearly made "provably false" assertions in his

article that damaged Respondent and accordingly should be held liable for defamation. This is
not a case in which a person with "extra sensitive perception" derives a defamatory meaning from the statements at issue. Forsher v. Bugliosi,26 CaL.3d792,806 (1980). Rather, it is a case where the statements clearly implicate a defamatory meaning.

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Id.

The article's accusations are

not simply rhetorical hyperbole or "an irrational, vituperative expression of contempt." Krinslqt,
159 Cal. App. 4th at 1176. As a result, the statements more than clearly support a prima facie

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defamation claim.la

D. Petitioner's

meritless arguments are so lacking in credibility goodfaith and that sanctions against Petitioner and its counsel are appropriate.

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When a court makes an order pursuant to a motion to quash, it "may in its discretion
award the amount of the reasonable expenses incurred in making or opposing the motion,

including reasonable attorney's fees, if the court finds the motion was made or opposed in bad

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faith or without substantial justification." Cal. Civ. Proc. Code $ 1987.2(a). Petitioner's Motion
to Quash is so lacking in credible arguments and is so calculated to simply obstruct Respondent from obtaining Petitioner's true identity that the Court should conclude that the Motion to Quash
has been made

without substantial justification.

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Petitioner asserts that the U.K. Order is invalid because there is no signature-such is not
even a rule. Petitioner asserts that the U.K. Order is invalid based upon an inadmissible alleged

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phone conversation with a court clerk. Petitioner asserts, based on pure speculation and without any reasonable amount of investigation, that the U.K. court does not have jurisdiction. Petitioner
asserts that Respondent has not made a prima facie case for defamation, which he clearly has.

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Indeed, even the contemptuous assertion that Respondent is a "pirate" stems from provably false accusations that Respondent caused a bankruptcy and used his position as a sales agent to enrich himself. (Gobat Decl., fl 16, Tab 3.) la Petitioner's asiertion that {elponaent has caused the article to be available for a short time and that any harm has been limited and mitigated, (Mot to Quash at 7), is no defense or basis on which to quash this subpoena. And, Petitioner provides no legal support, just bare argument, for this position, once again simply grasping at straws in an attempt to avoid accountability.
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What is telling in this regard, however, is that Petitioner elected to avoid putting forth the
defamatory statements in its moving papers to illustrate that Respondent would be unable to make
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prima facie case. This is because Petitioner knows that Respondent has a prima facie case for

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defamation. Petitioner also failed to present any analysis of English defamation law, an
understanding of which is necessary for a California court to determine whether a motion to
quash should be granted. Rather, Petitioner just nakedly asserted that the offending content is

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'Journalistic commentary . . . on matters of public interest." Petitioner knows he is liable for the
defamatory statements, and as a result, Petitioner has no option but to make whatever arguments
are possible, regardless of merit, to avoid being

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identified. The submission of these groundless

arguments evidences the extent to which Petitioner and its counsel

will

go to avoid

identification.ls Such tactics should not be tolerated. Accordingly, Respondent requests that Petitioner's request for attorneys' fees be denied
and that Respondent be awarded sanctions in the amount of its attorneys' fees, which totaled

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$16,119. (Owens Decl.'1f 6.) Respondent also requests that he be allowed to add to this amount additional attomeys' fees and costs associated with his counsel's review of any reply brief
submitted by Petitioner and preparation and attendance at any hearing.

IV.

CONCLUSION
Respondent Oliver Gobat obtained a valid order from a U.K. court permitting discovery

of

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identiffing information about the person who published defamatory statements about him via

website blog and emails. A California subpoena based upon this order from the U.K. was served on Automattic, Inc., the company in possession of this identiffing information. Petitioner, without evidence and without legal merit, moves to quash this subpoena.

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Petitioner argues based upon a fabricated ruIe and heresay that the U.K. Order is

invalid-it

is

not. Petitioner argues that the U.K. court did not

have

jurisdiction to issue the U.K. Order

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ls Since Petitioner has seen fit to boldly request sanctions in this matter, the Court should be aware that Petitioner's counsel failed to confer with Respondent's counsel regarding the date the hearing on this matter as required by LRSF 10.0(c)(1). Further, it does not appear that Petitioner has filed a proper certificate of service evidencing proper service of iti motion on Respondent.
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Opp. to Mot. to Quash

without any basis. The U.K. court specifically found that it had jurisdiction. Petitioner iugues
that Respondent did not make a prima facie case for defamation, not be arguing that the
statements are not defamatory, but by simply making bald conclusory statements. In fact,

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Petitioner did not even present the statements to the Court in its moving papers for the obviour
reasons that their defamatory nature would be obvious and it would be patently useless to argu

otherwise. Petitioner is simply misusing the U.S. legal system by submitting any argument
possible, regardless of merit, with his only objective of avoiding identification and liability for

defamation. Petitioner's Motion should be denied and he and his counsel should be sanctioner
Dated: October 2,2013 Respectfully submitted,

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o
By
Bruno W. Tarabichi Attorneys for Respondent Oliver Gobat

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opp. to Mot. to Qua

CERTIFICATE OF SERVICE I am employed in the City of San Jose, County of Santa Clara, State of California, I am over tl age of 18 years and not aparty to the within action. My business address is 111 N. Market St. Suite 730, San Jose, California 951 13. On October 2,2013,I caused copies of the attached
document(s) described as follows:

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RESPONDENT OLIVER GOBAT'S OPPOSITION TO MOTION TO QUASH SUBPOENA AND REQUEST FOR SANCTIONS

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DECLARATION OF DAVID R. OWENS IN SUPPORT OF RESPONDENT oLMR GOBAT'S OPPOSITION TO MOTION TO QUASH SUBPOENA AND REQUEST FOR SANCTIONS DECLARATION OF OLIYER GOBAT IN SUPPORT OF RESPONDENT oLMR GOBAT'S OPPOSITION TO MOTION TO QUASH SUBPOENA AND REQUEST FOR SATICTTONS DECLARATION OF ASHLEY HURST IN SUPPORT OF RESPONDENT oLMR GOBAT'S OPPOSITTON TO MOTION TO QUASH SUBPOENA AND REQUEST FOR SANCTIONS
to be served on:
Catherine R. Gellis P.O.Box2477 Sausalito, CA94966

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M (BY OVERNIGHT DELIVERY) I caused each such envelope to the addressee(s) noted above, with charges fully prepaid, to be sent by overnight delivery from San Jose, California. am readily familiar with the practice of Owens Tarabichi LLP for collection and processing ol correspondence for overnight delivery, said practice being that in the ordinary course of busin mail is placed with the ovemight delivery service on the same day as it is placed for collection

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n (BY FIRST CLASS MAIL) I caused each such envelope to the addressee(s) noted above, with postage thereon fuIly prepaid, to be placed in the United States mail in San Jose, Califon I am readily familiar with the practice of Owens Tarabichi LLP for collection and processing r correspondence for mailing, said practice being that in the ordinary coluse of business mail is deposited in the United States Postal Service the same date as it is placed for collection. tr (BY PERSONAL SERVICE) The person whose name is noted below caused to be deliver
by hand each such envelope to the addressee(s) noted above.

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(BY FACSIMILE) The person whose rurme is noted below caused to be transmitted by facsimile each such document to the addressee(s) noted above. (BY ELECTRONIC MAIL) The person whose name is noted below caused to be transmit by elecffonic mail to the addressee(s) noted above. I declare under penalty of perjury under true and correct.
State of California that the foregoing

tr tr

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Date:

October

2,2013

By:

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Counselors At Law

Cert. Ser. Opp. to M to Qur