William Nash vs The Expert Institute Group LLC et a

Case Number

25CV01050

Case Type

Hearing Date / Time

Mon, 08/11/2025 - 10:00

Nature of Proceedings

Application to Appear Pro Hac Vice; CMC; Motions to Strike (2)

Tentative Ruling

William Nash v. The Expert Institute Group, LLC, et al.

Case No. 25CV01050

           

Hearing Date: August 11, 2025                                                          

HEARING:              (1) Defendants’ Special Motion To Strike Plaintiff’s Complaint

                                    (2) Defendants The Expert Institute Group, Inc., The Expert Institute Group, LLC, And Levine Leichtman Capital Partners, LLC’s, Special Motion To Strike Plaintiff’s First Amended Complaint

                                    (3) Verified Application Of Katherine M. Bolger For Pro Hac Vice Admission To Appear As Counsel For Defendants The Expert Institute Group, Inc., The Expert Institute Group, LLC, And Levine Leichtman Capital Partners, LLC

ATTORNEYS:        For Plaintiff William Nash: Christopher H. Whelan, Law Offices Christopher H. Whelan, Inc.

For Defendants The Expert Institute Group, LLC, The Expert Institute Group, Inc., and Levine Leichtman Capital Partners, LLC: Katherine M. Bolger (pro hac vice application pending), Rachel R. Goldberg, Farrah C. Vazquez, Davis Wright Tremaine LLP

TENTATIVE RULING:

(1) The special motion of defendants to strike plaintiff’s complaint is ordered off-calendar.

(2) The special motion of defendants to strike plaintiff’s first amended complaint is denied.

(3) The verified application of Katherine M. Bolger, for pro hac vice admission to appear as counsel for defendants is granted.

Background:

On February 18, 2025, plaintiff William Nash (Nash) filed a complaint against defendants The Expert institute Group, LLC, (Expert LLC), The Expert Institute Group, Inc., (EIG) and Levine Leichtman Capital Partners, LLC (LLCP) (collectively, defendants), alleging two causes of action for defamation (libel), and defamation (slander).  

The complaint arises from allegedly false statements published on a website purportedly owned and operated by defendants, asserting that Nash, who is a forensic motorcycle expert, was convicted three times for driving under the influence or “DUI”. (Compl., ¶¶ 1, 13, & 15-23.) Nash alleges that the publication of these false statements caused an unexpected sharp decline in the demand for expert services provided by Nash, and a loss of earnings. (Compl., ¶¶ 12, 14, & 24.)

Court records reflect that on April 1, 2025, the court signed and entered an order pursuant to a stipulation of the parties extending the time for defendants to respond to the complaint to May 2, 2025. (Apr. 1, 2025, Stip. & Order.)

On May 1, 2025, Nash filed a first amended complaint (the FAC), alleging the same two causes of action described above against defendants, and naming Spectrum Equity as the defendant designated by the fictitious name of Doe 1. (See FAC, ¶ 5.) As alleged in the FAC:

Since 2007, Nash has owned and operated Nash Forensic Motorcycle Expert Witness through which Nash provides expert services in cases involving injuries to drivers of motorcycles. (FAC, ¶¶ 1 & 8-9.) Nash has been called upon to consult and provide expert testimony by plaintiffs and defendants throughout the country, has served as a motorcycle expert in record setting cases, and has enjoyed an outstanding reputation built over almost two decades of expert forensic work. (FAC, ¶¶ 9-10.)

In 2024, Nash experienced an unexpected and inexplicable sharp decline in email and phone inquiries, in “hits” on Nash’s “Motorcycle Expert” website, in the demand for Nash’s expert services, and in Nash’s earnings. (FAC, ¶ 12.) These trends were inconsistent with what should be expected based on Nash’s reputation and role in achieving record setting verdicts. (Ibid.)

On January 29, 2025, Nash discovered that the “Expert Institute”, which is owned and operated by defendants and which provides information regarding expert witnesses throughout the United States, had published a “William E. Nash-Expert Witness Profile” (the Nash Profile) on its website “expertinstitute.com” (the website), which included an accusation or statement that Nash had three DUI offenses. (FAC, ¶¶ 13, 28, 30 & Exhs. 1-2.) The Nash Profile also included statements regarding Nash’s age and a reference to a Kiwanis Club meeting which were false. (FAC, ¶¶ 16-17.)

Nash has never been convicted of DUI. (FAC, ¶¶ 13 & 15.) Though defendants attributed the false statements or accusations appearing in the Nash Profile to information contained in the records of the “Mason County District Court”, Nash was informed by the clerk of that court that there exists no record of a DUI conviction for anyone named Nash. (FAC, ¶ 15.) Nash was never charged, tried, or convicted in any “Mason County” court in any state. (Ibid.)

Defendants knew that accusations of an arrest and criminal conviction for DUI in an area of expertise which includes driving and motorcycle safety would be devastating to that expert’s credibility and career. (FAC, ¶ 23 & Exh. 3 [promotional materials of the Expert Institute stating that a criminal conviction can damage an expert’s credibility].) Defendants failed to investigate or confirm the truth of the statements published in the Nash Profile, including by failing to contact Nash notwithstanding that the Expert Institute knew Nash’s email address, phone number, and website. (FAC, ¶¶ 18-19.)

Nash discovered that the information contained in the Nash Profile was gathered and conglomerated by defendants’ “AI-powered” expert vetting tool “Expert Radar” without any review or analysis for reasonableness or truthfulness. (FAC, ¶¶ 20 & 23.) Defendants’ goal of fast and low cost “24/7 alerts whenever new information is uncovered” replaced more time-consuming goals of accuracy and truthfulness. (FAC, ¶ 20.)

On January 29, 2025, Nash contacted the Expert Institute and demanded that it correct or remove the Nash Profile which the Expert Institute agreed to do. (FAC, ¶ 24.) Though the statement relating to the three DUI offenses was partially removed, it remains on the internet, including through “Google” searches, and has been or will continue to be republished in written reports to defendants’ paying subscribers. (FAC, ¶¶ 13 & 24-25.) Nash has also been forced to republish the false statement in order to refute it to potential customers inquiring about Nash’s expert services, resulting in one customer deciding not to hire Nash. (FAC, ¶ 26.)

On May 2, 2025, defendants answered the complaint by generally denying its allegations and asserting affirmative defenses.(Note: The court notes that the answer of LLCP was filed separately from the answer of EIG and Expert LLC.)

Also on May 2, 2025, EIG and LLCP, to whom the court will refer collectively as the Expert Group for ease of reference, separately filed a special motion (the first motion) for an order striking the complaint. The first motion is made under subdivision (e)(3) and (4) of Code of Civil Procedure section 425.16, on the grounds that the complaint arises directly from the Expert Group’s exercise of free speech rights in connection with matters of public interest, that LLCP cannot be held liable under any theory, and that Nash cannot establish a probability that he will prevail on his claims, among others.

Court records further reflect that on May 13, 2025, a joint stipulation executed by counsel for the parties was filed in this action, in which the parties agree, among other things, that Nash mistakenly failed to serve the FAC on defendants, that the first motion was filed without knowledge of the FAC, that defendants’ time to respond to the FAC would be extended to June 4, 2025, and that defendants may, on or before July 3, 2025, file a special motion to strike the FAC including as to claims alleged in the original complaint. (May 13, 2025, Joint Stip., ¶¶ 4-5 & 7.)

On May 13, 2025, the court signed and entered an order on the joint stipulation described above that defendants’ deadline to respond to the FAC shall be June 4, 2025, and that defendants’ deadline to file a special motion to strike the FAC shall be July 3, 2025.

EIG and Expert LLC filed an answer to the FAC on June 3, 2025, generally denying its allegations and asserting affirmative defenses. LLCP also separately answered the FAC on June 3, 2025.

Also on June 3, 2025, the Expert Group separately filed a motion (the motion or present motion) for an order striking the FAC, based on identical or substantively similar grounds as those described above in regard to the first motion. The court’s review of the first motion and the present motion also shows that the Expert Group advances the same if not substantially similar grounds for and arguments in support of each motion.

The present motion is opposed by Nash.

The application for pro hac vice admission:

On May 2, 2025, defendants filed an unopposed verified application (the application) of Katherine M. Bolger (Bolger) for an order permitting Bolger to appear as counsel pro hac vice for defendants in this action.

Analysis:

(1) The First Motion

 

For all reasons discussed below, the court will order the first motion off-calendar.

“ ‘ “ ‘[A]n amendatory pleading supersedes the original one, which ceases to perform any function as a pleading.’ ” ’ [Citation.] ‘The amended complaint furnishes the sole basis for the cause of action, and the original complaint ceases to have any effect either as a pleading or as a basis for judgment. [Citation.] [¶] Because there is but one complaint in a civil action [citation], the filing of an amended complaint moots a motion directed to a prior complaint. [Citation.]’ [Citation.] Thus, the filing of an amended complaint renders moot a demurrer to the original complaint. [Citation.] Similarly, ‘once an amended complaint is filed, it is error to grant summary adjudication on a cause of action contained in a previous complaint. [Citation.] ... “... After a cause of action is amended, the court may rule in favor of the defendant if, upon subsequent motion, or perhaps renewal of the earlier motion if appropriately framed, it is shown ... there are no triable material issues of fact which would permit recovery on that theory.” [Citation.]’ [Citation.]’ [Citation.]

“So too does an amended complaint render moot an anti-SLAPP motion directed to a prior complaint, with the following caveat: A plaintiff or cross-complainant may not seek to subvert or avoid a ruling on an anti-SLAPP motion by amending the challenged complaint or cross-complaint in response to the motion.” (JKC3H8 v. Colton (2013) 221 Cal.App.4th 468, 477-478 (JKC3H8), original italics.)

The Expert Group does not dispute that the FAC was filed before the Expert Group filed the first motion. For this reason, Nash “cannot be said to have amended the complaint to subvert or avoid a ruling on an anti-SLAPP motion that had not been filed at the time the amendment was made.” (JKC3H8, supra, 221 Cal.App.4th at p. 478.)

In addition, though information appearing in the May 13, 2025, joint stipulation described above indicates that Nash had not served the FAC on defendants as of the date the first motion was filed, “this does not change the fact there was no pending anti-SLAPP motion at the time of the amendment. Accordingly, the [first] motion in this case, directed to a superseded complaint, was moot from the start.” (JKC3H8, supra, 221 Cal.App.4th at p. 478.) For these and all further reasons discussed above, as the first motion is directed to a superseded complaint which, upon the filing of the FAC, ceased to have any pleading effect, that motion is moot.

(2) The Present Motion

Notwithstanding the caption of the present motion, the parties bringing the motion do not appear to include Expert LLC. (See Motion, Notice at p. 2, ll. 4-5 [identifying the parties bringing the motion as EIG and LLCP] & Memo. at p. 9, fn. 5 [“The Motion is made on behalf of only EIG and LLCP”].)

In addition, information appearing in the declaration of Michael Talve (Talve) submitted in support of the present motion, in which Talve states that he is the founder, Chief Executive Officer, and Managing Director of EIG, indicates that Expert LLC is not an existing entity. (Talve Decl., ¶¶ 4 & 5; see also Notice at p. 2, fn. 1.) In Nash’s opposition to the present motion, Nash states, with respect to the Expert Group’s contention that Expert LLC is not an existing entity, that “[t]he parties currently are addressing this issue by negotiation and the informal production of information.” (Opp. at p. 6, fn. 1.)

For all reasons discussed above, it is the court’s understanding that the present motion is directed to the claims or causes of action alleged in the FAC against the Expert Group only, and not Expert LLC. Therefore, the court will address these claims only in this ruling.

The present record also reflects that the Nash Profile includes the following statement: “William E. Nash, 53, DUI third offense....” (Talve Decl., Exh. A at pdf p. 10.) Though Nash alleges in the FAC that the Nash Profile included additional purportedly false statements regarding Nash’s age and membership in the Kiwanis Club, Nash does not appear to contend that these allegations support the claims alleged in the first and second causes of action. The court’s review of the claims alleged in the first and second causes of action also indicates that these allegations “instead are incidental background [citations].” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1012 (Bonni); see also FAC, ¶¶ 28-43 [first cause of action] & 46-49 [second cause of action].)

In addition, the Expert Group does not identify in the motion any speech or conduct apart from the publishing of the Nash Profile containing the statement regarding a “DUI third offense” as further discussed above. (Bonni, supra, 11 Cal.5th at p. 1011 [if the “moving party fails to identify how the speech or conduct underlying some of those claims is protected activity, it will not carry its first-step burden as to those claims”].)

For all reasons discussed above, the undisputed record shows that the “act” at issue in this proceeding which gives rise to the claims alleged in the first and second causes of action for defamation is the publishing of the Nash Profile on the website by the Expert Institute in which the statement regarding a third DUI offense appears.

Code of Civil Procedure section 425.16 provides that “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (Code Civ. Proc., § 425.16, subd. (b)(1).) Relevant here based on the grounds stated in the notice of the present motion, “[a]s used in [section 425.16], ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: ... (3) 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, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (Code Civ. Proc., § 425.16, subd. (e)(3)-(4).)

“A special motion to strike under section 425.16 is a procedural device that allows a defendant to obtain early dismissal of a lawsuit that qualifies as a SLAPP. [Citation.] A SLAPP (acronym for strategic lawsuit against public participation) is a lawsuit ‘ “ “ ‘ “aimed at preventing citizens from exercising their political rights or punishing those who have done so.” ...’ ...” ... Such suits “are brought, not to vindicate a legal right, but rather to interfere with the defendant’s ability to pursue his or her interests.” ... The aim is to force the defendants to devote time, energy and money to combat the lawsuit long enough for the plaintiff to accomplish his underlying objectives.’ [Citations.] Courts must construe this statute ‘broadly’ in favor of the moving party. [Citation.]” (San Diegans for Open Government v. Har Construction, Inc. (2015) 240 Cal.App.4th 611, 621-622 (San Diegans).)

“Section 425.16 posits ... a two-step process for determining whether an action is a SLAPP. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. [Citation.] ‘A defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause fits one of the categories spelled out in section 425.16, subdivision (e)’ [citation]. If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier).)

“Before engaging in this two-step analysis, a court must consider any claims by the plaintiff that a statutory exemption contained in section 425.17 applies.” (San Diegans, supra, 240 Cal.App.4th at p. 622; see also BioCorRx, Inc. v. VDM Biochemicals, Inc. (2024) 99 Cal.App.5th 727, 735 (BioCorRx) [“The commercial speech exemption is a threshold issue...”].) In the opposition to the motion filed by Nash, Nash contends that the statutory exemption set forth in subdivision (c) of Section 425.17 applies under the circumstances present here.

Section 426.16 was enacted “to prevent powerful plaintiffs from chilling a defendant’s valid exercise of free speech rights. But the Legislature later observed that commercial defendants were abusing ‘the anti-SLAPP statute by claiming their advertising impacted the public interest.’ [Citation.] To combat this abuse, the Legislature enacted the commercial speech exemption, found in section 425.17, subdivision (c). When this exemption applies, the challenged speech or conduct is not protected by the anti-SLAPP statute.” (BioCorRx, supra, 99 Cal.App.5th at p. 730.)

Subdivision (c) of section 425.17 “exempt[s] from the anti-SLAPP law a cause of action arising from commercial speech when (1) the cause of action is against a person primarily engaged in the business of selling or leasing goods or services; (2) the cause of action arises from a statement or conduct by that person consisting of representations of fact about that person’s or a business competitor’s business operations, goods, or services; (3) the statement or conduct was made either for the purpose of obtaining approval for, promoting, or securing sales or leases of, or commercial transactions in, the person’s goods or services or in the course of delivering the person’s goods or services; and (4) the intended audience for the statement or conduct meets the definition set forth in section 425.17(c)(2).” (Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 30 (Simpson).)

To determine whether the exemption applies, the court may “rely on the allegations of the complaint because the ... exception is a threshold issue based on the nature of the allegations and scope of relief sought in the prayer.” (Strathmann v. Acacia Research Corp. (2012) 210 Cal.App.4th 487, 499, fn. 3 [noting that no party in that case had “cited to evidence in the record” relating to whether the exemption at issue applied]; see also Club Members for an Honest Election v. Sierra Club (2008) 45 Cal.4th 309, 316 [“[i]f a complaint satisfies the provisions of the applicable exception, it may not be attacked under the anti-SLAPP statute”].)

To the extent evidence is presented by a party to show whether the commercial speech exemption does or does not apply, the court does not “does not weigh credibility or compare the weight of the evidence. Rather, the court’s responsibility is to accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.” (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212; Xu v. Huang (2021) 73 Cal.App.5th 802, 815 [“The same holds true in reviewing whether the commercial speech exemption applies...”].)

“The commercial speech exemption ... ‘is a statutory exception to section 425.16’ and ‘should be narrowly construed.’ [Citations.].” (Simpson, supra, 49 Cal.4th at p. 22.) Further, Nash “has the burden of proving the applicability of the exemption.” (Id. at p. 24.)

To show why section 425.16 does not apply to this action based on the commercial speech exemption provided in section 425.17, subdivision (c), Nash refers to information appearing in the Talve declaration described above. In that declaration, Talve states that EIG operates the Expert Institute which “is a leading provider of legal technology, offering a wealth of legal data and opposition research on over a million expert witnesses across disciplines.” (Talve Decl., ¶ 3.) The services provided by the Expert Institute are available on “expertinstitute.com” (i.e., the website). (Ibid.)

Talve further states that “Expert Radar is an artificial intelligence solution that streamlines the process of expert witness due diligence by aggregating third-party information about experts from dozens of legal and professional databases. The tool parses through that voluminous information—from legal filings, expert reports, transcripts, dockets, news, publications, disciplinary actions, and social media—to organize an expert’s comprehensive legal and professional history in a single interactive profile. Rather than looking to dozens of separate databases—a costly and time-consuming process—Expert Radar enables users to view this information in one place and provides analytics and searchability features.” (Talve Decl., ¶ 8.) Talve asserts that “[b]y aggregating information about experts in one place, Expert Radar also serves as an equalizer, enabling small firms or litigants to access the same level of information as larger or more sophisticated firms with access to dozens of costly legal databases, thereby expanding access to quality experts and opposition research that may be crucial to their case.” (Talve Decl., ¶ 9.)

According to Talve, content published on Expert Radar is “composed of information from third-party sources” and is not authored by the Expert Institute. (Talve Decl., ¶ 10.) Information appearing in the profile of an expert witness as described above is unedited but “may be organized and categorized for ease of searchability.” (Ibid.) Talve states that “users” can evaluate “whether any particular data point is relevant to their case” or “pertains to the expert they are researching” and can “disregard irrelevant information” especially when “an expert has a common name that may generate hits from other individuals that have the same name.” (Talve Decl., ¶ 11.)

Talve also explains that “limited portions of witness profiles on [the website] are viewable by the public without the need for a subscription or any login credentials.” (Talve Decl., ¶ 12.) Talve attaches to his declaration a “screenshot of a preview of [Nash’s] Radar profile” which Talve asserts was published on the website on September 4, 2024. (Talve Decl., ¶¶ 13, 18 & Exh. A.) Talve states that EIG did not author or generate the information appearing in that preview. (Talve Decl., 16.) Talve was not aware of the existence of, and neither Talve nor any individual at EIG was aware of any inaccuracies in, the preview until January 29, 2025. (Talve Decl., ¶ 14.)

The factual allegations of the FAC are substantively similar if not identical to the assertions included in the Talve declaration. For example, Nash alleges in the FAC that EIG owns and operates the Expert Institute and the website, and the web site address alleged in the FAC is the same as the address described in the Talve declaration. (FAC, ¶¶ 3 & 13.)

In addition, the preview of Nash’s “Radar” profile attached to and described in the Talve declaration includes content appearing in exhibits 1 and 2 of the FAC, which Nash describes as examples of the content included in the Nash Profile. (See, e.g., FAC, ¶¶ 28 & 30 [alleging the false statements are “exemplified” by the Nash Profile] & Exhs. 1 & 2.) This suggests to the court that the preview of Nash’s “Radar” profile attached to the Talve declaration is a full or complete copy of the Nash Profile giving rise to the claims alleged in the FAC. For these reasons, the court will also refer collectively to the preview of Nash’s “Radar” profile referenced in and attached to the Talve declaration, and exhibits 1 and 2 of the FAC, as the Nash Profile.

The FAC also includes allegations describing “Expert Radar”, and the manner in which that “tool” is used by the Expert Institute to collect and publish information about experts such as Nash. (FAC, ¶¶ 20 & 23.) These allegations are substantively similar and in some respects, effectively identical to the description of Expert Radar and the manner in which the Expert Institute uses Expert Radar provided in the Talve declaration.

Nash also alleges in the FAC that the Expert Institute informed its customers and potential customers that they can use Expert Radar to perform detailed background checks of experts to streamline the due diligence research process, and that the statements appearing in the Nash Profile were published and will continue to be published to “paying customers and subscribers” of the Expert Institute. (FAC, ¶¶ 23, 25 & 31.)

The allegations of the FAC, and the information and evidence offered in the Talve declaration described above, show that EIG operates the Expert Institute and the website, and that the Expert Institute provides legal technology services relating to expert witness due diligence. These services are offered or made available on the website.

The record also reflects that Expert Radar is a “tool” owned and used by EIG and the Expert Institute to aggregate or collect data and information from third-party sources regarding expert witnesses such as Nash, such as the legal and professional history of each expert and information obtained through purported background checks, which is then organized and categorized in the expert witness profiles published on the website. Considering that only limited portions or “previews” of these profiles may be viewed on the website without a subscription, it can be reasonably inferred that a subscription enables a “user” of the website, or of the Expert Institute’s legal technology services, to view an “unlimited” version of any expert witness profile published on the website.

Though Talve does not describe the subscriptions or login credentials referenced in the Talve declaration, it can also be reasonably inferred from matters appearing in the Talve declaration and the Nash Profile, as well as the allegations of the FAC describing “paying customers”, that the subscriptions referenced in the Talve declaration may be purchased by users of the website for a price. (See, e.g., Talve Decl., Exh. A [Nash Profile] at pdf pp. 9 [link to “Order Expert Radar”] & 12 [link to “Pricing” data].)

Based on the allegations, information, and evidence described above, and inferences which may be drawn from the record, Nash has made a sufficient prima facie showing that EIG, through its operation of the Expert Institute and the website, is or was primarily engaged in the business of selling to the public legal technology services intended to “streamline” the expert witness due diligence process through the providing of expert witness profiles containing aggregated and organized expert witness data, and which are published on the website.

For all reasons further described above, the present record is also sufficient to show that the publishing of the Nash Profile, of which only a “limited” preview was available to users without a subscription, was undertaken or made for the purpose of promoting or securing sales, subscriptions for, or other commercial transactions in these legal technology services, including the Nash Profile and the expert witness data contained in that profile. The record further reflects that the intended audience of the conduct or statements at issue are actual or potential customers of the Expert Institute who purchase subscriptions for the legal technology services, such as the expert witness profiles, referenced in the Talve declaration.

As to whether the publishing of the Nash Profile consists of representations of fact about the Expert Institute’s or EIG’s business operations, goods, or services, “in deciding whether speech is commercial two relevant considerations are advertising format and economic motivation. [Citation.] These considerations imply that commercial speech generally or typically is directed to an audience of persons who may be influenced by that speech to engage in a commercial transaction with the speaker or the person on whose behalf the speaker is acting. Speech in advertising format typically, although not invariably, is speech about a product or service by a person who is offering that product or service at a price, directed to persons who may want, and be willing to pay for, that product or service....Economic motivation likewise implies that the speech is intended to lead to commercial transactions, which in turn assumes that the speaker and the target audience are persons who will engage in those transactions, or their agents or intermediaries.

“Finally, the factual content of the message should be commercial in character. In the context of regulation of false or misleading advertising, this typically means that the speech consists of representations of fact about the business operations, products, or services of the speaker (or the individual or company that the speaker represents), made for the purpose of promoting sales of, or other commercial transactions in, the speaker’s products or services. This is consistent with, and implicit in, the United States Supreme Court’s commercial speech decisions, each of which has involved statements about a product or service, or about the operations or qualifications of the person offering the product or service.” (Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 960-961 (Kasky).)

“What matters for purposes of the commercial versus noncommercial speech analysis is whether the speech at issue is about the speaker’s product or service or about a competitor’s product or service, whether the speech is intended to induce a commercial transaction, and whether the intended audience includes an actual or potential buyer for the goods or services.” (JAMS, Inc. v. Superior Court (2016) 1 Cal.App.5th 984, 995 (JAMS).)

Considering that members of the public who do not have the subscriptions referenced in the Talve declaration may view only limited portions or “previews” of the expert witness profiles published on the website, and that the legal technology services at issue here consist of the use of Expert Radar to collect and organize expert witness data into witness profiles intended to streamline the expert due diligence process, it can be reasonably inferred that these limited previews are intended to provide examples of the quantity or quality of the legal technology services offered by the Expert Institute, including the expert witness data that has been collected and organized by Expert Radar.

For all reasons further discussed above, the record reflects that the publishing of the Nash Profile on the website involved statements about the quality or quantity of the legal technology services provided by the Expert Institute with respect to expert witness due diligence, and about the operations of the Expert Institute and its Expert Radar “tool”, including Expert Radar’s ability to streamline the expert witness due diligence process.

In their reply, the Expert Group contends that statements included in the Nash Profile do not address the business operations, goods, or services of the Expert Group, and were not made to secure sales in such goods or services. Instead, the Expert Group contends, the Nash Profile relates to the expert services offered by Nash. The points advanced by the Expert Group are not persuasive.

For example, the Expert Group relies on the decision in Simpson. Plaintiff in Simpson was “in the business of designing, manufacturing, and marketing building products, including metal connectors and other hardware for use in wood frame construction.” (Simpson, supra, 49 Cal.4th  at p. 17.) Defendant was a California attorney who, upon learning about the potential for corrosion of certain fasteners and connectors used with pressure treated wood, “arranged for an advertisement to be placed in the San Jose Mercury News in order to locate individuals who had purchased galvanized fasteners and connectors manufactured by [plaintiff] and two other companies....” (Id. at p. 18.)

Plaintiff in Simpson thereafter conducted an opinion survey which showed that “shoppers, after reading the advertisement, were significantly more likely to believe that [plaintiff’s] galvanized screws were defective or of low quality and were significantly less likely to purchase galvanized screws manufactured by [plaintiff].” (Simpson, supra, 49 Cal.4th at p. 20.) Two days later, plaintiff in Simpson filed a complaint for “defamation, trade libel, false advertising, and unfair business practices.” (Ibid.) Defendant filed a motion to strike that complaint under section 425.16, which was granted by the trial court. (Ibid.) The judgment of dismissal entered by trial court was affirmed by the Court of Appeal. (Ibid.)

In affirming the judgment of the Court of Appeal, the California Supreme Court assumed that the advertisement at issue “implies that [plaintiff’s] galvanized screws are defective. As the Court of Appeal recognized, however, even an implication that [plaintiff’s] screws are defective ‘is not “about” [defendant’s] or a competitor’s “business operations, goods, or services....” [Citation.] It is, rather, a statement “about” [plaintiff]—or, more precisely, [plaintiff’s] products.’ It therefore falls squarely outside section 425.17(c)'’s exemption for commercial speech.” (Simpson, supra, 49 Cal.4th at p. 30, original italics.)

As to the advertisement’s representation that the defendant attorney would investigate a potential claim, court further noted that the complaint at issue in Simpson did “not allege that this statement is false or even that it is defamatory. In addition, a promise of what an attorney will do if the reader were to respond to the advertisement ‘is not a representation of fact, but an agreement to take certain actions in the future.’ [Citation.] Consequently, it does not constitute ‘representations of fact about that person’s ... business operations, goods, or services.’ [Citation.]” (Simpson, supra, 49 Cal.4th at p. 31.)

The publishing of the Nash Profile is a qualitatively different act from the attorney’s advertisement at issue in Simpson. For example, unlike in Simpson, the publishing of the Nash Profile does not constitute a promise or agreement to perform a service with respect to matters appearing in that profile, such as the legal representation services at issue in Simpson. Considering that the stated purpose for publishing or providing the Nash Profile on the website, which as further discussed above contains expert witness data that has already been aggregated and organized by a tool used by the Expert Institute, is to permit a user with a subscription to streamline its due diligence analysis of Nash, the inference is that the data contained within the Nash Profile is truthful, accurate and reliable. For this reason, the Nash Profile, including any limited preview of that profile that is available to customers without a subscription, effectively constitutes a representation of fact regarding the accuracy and reliability of information contained within that profile, and of the due diligence technology services provided by the Expert Institute through its use of Expert Radar. “They are certainly intended to be relied upon by customers ... otherwise they would serve no legitimate purpose.” (JAMS, supra, 1 Cal.App.5th at p. 995.)

For all reasons discussed above, Nash has met his burden to show that the publishing of the Nash Profile was intended to lead to commercial transactions in or “subscriptions” for the legal technology services offered by the Expert Institute with respect to expert witness due diligence, and was “made for the purpose of financial gain.” (Kasky, supra, 27 Cal.4th at p. 962 [discussing statements which constitute “product references”].) For these reasons, the publishing of the Nash Profile on the website “fit[s] comfortably within the commercial speech exemption of section 425.17, subdivision (c).” (JAMS, supra, 1 Cal.App.5th at p. 995.)

The Expert Group contends, as to any claims alleged against LLCP, that LLCP was not involved in the creation or publication of expert witness profiles or previews on the website and is a different entity from the entity that acquired EIG as more fully discussed below, and that the Nash Profile was published prior to the acquisition of EIG.

The court “do[es] not consider the merits of [Nash’s] claims when analyzing whether the exemption applies.” (BioCorRx, supra, 99 Cal.App.5th at p. 735.) “A conclusion about whether the plaintiff’s claims ‘are the kind of claims the Legislature intended to exempt from the scope of the anti-SLAPP statute when it adopted section 425.17 ... is entirely independent of any evaluation of the merits of those claims, or even the adequacy of [the] ... pleadings.’ [Citation.]” (JAMS, supra, 1 Cal.App.5th at p. 993, original italics.) The points raised by the Expert Group in regard to whether LLCP was involved in the publishing of the Nash Profile address to the merits of the causes of action alleged against LLCP and not whether the commercial speech exemption applies to these causes. As the court does not, for all reasons discussed above, consider the merits of Nash’s claims to determine whether the commercial speech exemption under subdivision (c) of section 425.17 applies, these arguments do not change the court’s analysis.

Even if the court were to determine that the commercial speech exemption claimed by Nash does not apply under the circumstances present here, there exist additional grounds, further discussed below, for denying the motion.

“Analysis of an anti-SLAPP motion is not confined to evaluating whether an entire cause of action, as pleaded by the plaintiff, arises from protected activity or has merit. Instead, courts should analyze each claim for relief — each act or set of acts supplying a basis for relief, of which there may be several in a single pleaded cause of action — to determine whether the acts are protected and, if so, whether the claim they give rise to has the requisite degree of merit to survive the motion.” (Bonni, supra, 11 Cal.5th at p. 1010.)

“ ‘As is true with summary judgment motions, the issues in an anti-SLAPP motion are framed by the pleadings.’ [Citations.] Thus, the act or acts underlying a claim for purposes of an anti-SLAPP statute is determined from the plaintiffs’ allegations.” (Medical Marijuana, Inc. v. ProjectCBD.com (2020) 46 Cal.App.5th 869, 883, original italics.)

Noted above, the first cause of action of the FAC alleges a claim for libel based on the statement appearing in the Nash Profile regarding a third DUI offense. The second cause of action for slander arises from the alleged “number of occasions [Nash] has been forced and compelled to orally self-publish and refute these false and defamatory accusations to potential customers who were inquiring regarding his services as a consultant and forensic expert...” which have “resulted in a potential customer rejecting his services.” (FAC, ¶¶ 46-47.) Nash also alleges in the second cause of action that he “has suffered injury and will continue to suffer future injury and harm to his personal, business and professional reputations since publications and foreseeable republications of this defamation will occur.” (FAC, ¶ 48.)

If a defendant such as the Expert Group satisfies the first prong of Section 426.16, subdivision (b), by showing that the allegations at issue arise from activity protected by subdivision (b) of Section 425.16, the burden then shifts to the plaintiff “to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 396 (Baral).) “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 being stricken under the statute.” (Navellier, supra, 29 Cal.4th at p. 89, original italics.) For all reasons discussed below, the motion fails to satisfy both prongs of section 425.16, subdivision (b).

“Defamation is an invasion of the interest in reputation. The tort involves the intentional publication of a statement of fact which is false, unprivileged, and has a natural tendency to injure or which causes special damage. [Citations.] Publication, which may be written or oral, is defined as a communication to some third person who understands both the defamatory meaning of the statement and its application to the person to whom reference is made. Publication need not be to the public or a large group; communication to a single individual is sufficient. [Citations.] Reprinting or recirculating a libelous writing has the same effect as the original publication.

“The same is true in the case of slander, or oral defamation; when a person repeats a slanderous charge, even though identifying the source or indicating it is merely a rumor, this constitutes republication and has the same effect as the original publication of the slander.” (Ringler Associates Inc. v. Maryland Cas. Co. (2000) 80 Cal.App.4th 1165, 1179-1180 (Ringler).)

“Defamation has two forms, libel and slander. [Citation.] Defamatory publications that are made ‘by writing, printing, picture, effigy, or other fixed representation to the eye,’ are considered libel. [Citation.] Slander involves defamatory publications that are ‘orally uttered,’ and also includes ‘communications by radio or any mechanical or other means.’ [Citation.]

“Where a libelous statement ‘is defamatory on its face, it is said to be libelous per se, and actionable without proof of special damage. But if it is defamation per quod, i.e., if the defamatory character is not apparent on its face and requires an explanation of the surrounding circumstances (the “innuendo”) to make its meaning clear, it is not libelous per se, and is not actionable without pleading and proof of special damages.’ [Citation.] Similarly, certain slanderous statements are considered slanderous per se, and actionable without proof of special damage. However, the slander statute expressly limits slander per se to four categories of defamatory statements, ‘including statements (1) charging the commission of crime, or (2) tending directly to injure a plaintiff in respect to the plaintiff’s [profession, trade, or] business by imputing something with reference to the plaintiff’s [profession, trade, or] business that has a natural tendency to lessen its profits.’ [Citations.] And while libel per se is not so limited, courts have held the foregoing categories of defamatory statements to also constitute libel per se. [Citations.]” (Burrill v. Nair (2013) 217 Cal.App.4th 357, 382-383, disapproved on another ground in Baral, supra, 1 Cal.5th at p. 396, fn. 11, original italics.)

In the Nash declaration submitted in support of the opposition to the motion, Nash notes that the statement at issue regarding a “DUI third offense” was ostensibly attributed to the “Mason County District Court”. (Nash Decl., ¶¶ 8-9 & Exh. 1; see also FAC, Exh. 1-2; Talve Decl., Exh. A at pdf p. 10 [section titled “Media & News”].) Nash further states that when he discovered this publication, he contacted the Mason County District Court and was informed by the clerk that they “had no record of any DUI for William E. Nash, William Nash, or anyone named Nash.” (Nash Decl., ¶ 10.) Nash unequivocally asserts, under penalty of perjury: “I have never had any DUI offense, and I have never been convicted of a DUI, anywhere.” (Nash Decl., ¶ 8.)

Nash also asserts that, starting in September 2024, he experienced a sharp decline in inquiries, calls, emails, hits on Nash’s website “Nash Forensic Motorcycle Expert Witness”, and demand for Nash’s expert services”, and a substantial decrease in income from the expert services furnished by Nash. (Nash Decl., ¶ 7.)

“ ‘The sine qua non of recovery for defamation ... is the existence of falsehood.’ [Citation.]” (McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 112.) The Expert Group presents no evidence or information to challenge the matters stated in the Nash declaration described above. The Expert Group also presents no reasoned factual or legal argument showing why the statement regarding a “DUI third offense” appearing in the Nash Profile is true, and does not otherwise dispute the falsity of this statement. Considering that Talve also states that the Nash Profile was removed from the website the day after Talve was made aware of its existence as further detailed above, it appears to the court that the Expert Group concedes that the statement regarding a “DUI third offense” appearing in the Nash Profile is false. (See Talve Decl., ¶¶ 14-15.)

“The second step burden of establishing a probability of prevailing is not high.” (Billauer v. Escobar-Eck (2023) 88 Cal.App.5th 953, 964 (Billauer).) The undisputed evidence and information described above shows that the statement appearing in the Nash Profile regarding a “DUI third offense” was published on the website, was viewable by the general public and users of the website, and is false.

The record further reflects that the statement regarding a “DUI third offense” appearing in the Nash Profile effectively and directly charges Nash with the commission of a crime, and, on its face, would tend to cause injury to Nash’s occupation. For these and all reasons further discussed above, Nash has made a sufficient showing that this statement is defamatory per se, and that Nash is not required to show that he suffered special damage. (See Civ. Code, ¶¶ 45, 45a, & 46, subd. (3).) Therefore, the court finds that Nash has met his burden to make a prima facie showing that there exist facts which, if credited, would be sufficient to sustain a judgment in Nash’s favor as to the first cause of action alleged in the FAC, including any claims for libel per se, and that this cause of action is legally sufficient.  

The court now evaluates the legal and factual arguments advanced by the Expert Group “only to determine if they defeat [Nash’s] claim as a matter of law. [Citation.] [The Expert Group] can prevail either by establishing a defense or the absence of a necessary element. [Citation.] If there is a conflict in the evidence (the existence of a disputed material fact), the anti-SLAPP motion should be denied.” (Billauer, supra, 88 Cal.App.5th at pp. 964-965.)

To show that Nash cannot establish a necessary element of his libel claim, the Expert Group contends that LLCP was not in any respect involved with the creation, publishing, or maintenance of the Nash Profile. To support this contention, the Expert Group submits a declaration of Matthew Rich (Rich), who is a partner of LLCP responsible for the ”day-to-day management of LLCP’s U.S. Investment Team”, and who is “actively involved in sector strategy, deal structuring, and due diligence and oversight of the U.S. Portfolio.” (Rich Decl., ¶¶ 1-2.)

Rich states that LLCP is a “middle-market private equity firm founded in 1984 in Los Angeles, California, with a varied portfolio of investments across sectors including business services, franchising, education and training, and engineered products and manufacturing.” (Rich Decl., ¶ 3.) According to Rich, LLCP does not own and has never directed the activities of the Expert Institute or its website, and has never had any involvement in the creation of expert witness profiles or previews on the website. (Rich Decl., ¶¶ 4-5.)  

Rich further states that on September 26, 2024, the “LLCP Lower Middle Market Fund III, L.P.” (the Middle Market Fund) acquired EIG. (Rich Decl., ¶ 6.) Rich asserts that the Middle Market Fund is a “different entity” from LLCP, and that LLCP and the Middle Market Fund was not involved with the Expert Institute prior to September 26, 2024. (Rich Decl., ¶¶ 6-7.) Rich also asserts that the Middle Market Fund does not direct any of the day-to-day activities of the Expert Institute or its website, and did not have any involvement in the creation of expert witness profiles or previews on the website including with respect to the creation or publication of statements appearing in the Nash Profile which Rich notes was published prior to the Middle Market Fund’s acquisition of the Expert Institute. (Rich Decl., ¶¶ 8-9.)

Information appearing in both the Rich and Talve declarations shows that the Nash Profile remained on the website for four months after the date the Middle Market Fund acquired EIG and the Expert Institute. (See, e.g., Talve Decl., ¶ 15 [stating that the Nash Profile was removed on January 30, 2025].) It can be inferred from this information that the Expert Institute and the website, which were each operated by EIG, continued to operate after EIG was acquired by the Middle Market Fund. Though Rich contends that the Middle Market Fund does not direct the day-to-day activities of the Expert Institute or its website, there is no information explaining the manner by which the website ostensibly continued to operate after the acquisition of EIG by the Middle Market Fund.

In addition, considering that Rich contends that LLCP is a different entity from the Middle Market Fund, it is unclear to the court the basis on which Rich has personal knowledge of the operations of the Middle Market Fund with respect to the Expert Institute, the website, or the publication of expert witness profiles on the website. (See Morrow v. Los Angeles Unified School Dist. (2007) 149 Cal.App.4th 1424, 1445 (Morrow) [describing statements within a declaration which lacked “any showing of personal knowledge...”].) For these reasons, the information appearing in the Rich declaration with respect to the activities of the Middle Market Fund appears speculative. For present purposes, the court disregards statements made in declarations which are “argumentative, speculative and impermissible opinions, and also lack foundation and personal knowledge.” (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1238.)

The general assertion that LLCP is a “different entity” from the Middle Market Fund, without more, is also conclusory considering that Rich offers information which effectively describes the operations, or lack thereof, of the Middle Market Fund with respect to the website and the Expert Institute following its acquisition of EIG. (Morrow, supra, 149 Cal.App.4th at p. 1445 [“the manner in which the law should apply to particular facts is a legal question...”].)

“Reprinting or recirculating a libelous writing has the same effect as the original publication.” (Ringler, supra, 80 Cal.App.4th at p. 1180.) Further, “[r]atification is the voluntary election by a person to adopt in some manner as his own an act which was purportedly done on his behalf by another person, the effect of which, as to some or all persons, is to treat the act as if originally authorized by him.” (Rakestraw v. Rodrigues (1972) 8 Cal.3d 67, 73.) One who ratifies a defamatory publication by approving, authorizing, or adopting that publication may, under appropriate circumstances, be “responsible for [its] publication and subject to direct liability for defamation.” (Dickinson v. Cosby (2019) 37 Cal.App.5th 1138, 1158-1159.)

The present record reflects that the Nash Profile continued to circulate or remained on the website until it was removed on January 30, 2025. Accepting as true the evidence favorable to Nash, there exist facts which, if credited, are sufficient for present purposes to show that Nash has a probability of prevailing on the first cause of action to the extent the publishing of the Nash Profile was ratified after the acquisition of EIG. The speculative and conclusory evidence presented by the Expert Group does not, as a matter of law and for all reasons discussed above, defeat Nash’s facially sufficient “attempt to establish evidentiary support” for the claims alleged against LLCP. (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821 [also noting that the court “considers the pleadings and evidentiary submissions” of the parties but “does not weigh the credibility or comparative probative strength of competing evidence....”].)

The evidence presented by the Expert Group to show that Nash has no probability of prevailing on any claims against LLCP also includes statements by Talve purporting to show that LLCP is not involved in the Expert Institute’s operations or with matters appearing on the website. (Talve Decl., ¶¶ 6-7.) Though Talve has demonstrated knowledge of the operations of the Expert Institute and the website, to the extent Talve refers to LLCP’s operations after EIG was acquired by the Middle Market Fund, the basis on which Talve possesses knowledge of these operations following the acquisition of EIG is unclear. Therefore, these statements also appear to be conclusory and speculative. For these reasons, the information appearing in the Talve declaration also does not, as a matter of law, defeat Nash’s showing.

The Expert Group further contends that the allegations of the FAC show that Nash is a limited-purpose public figure with respect to his role as a motorcycle expert and motorcycle safety which, the Expert Group argues, requires Nash to plead and prove, with clear and convincing evidence, that each defendant acted with actual malice. The Expert Group also appears to contend that Nash has failed to allege facts sufficient to constitute a cause of action against each defendant because Nash has failed to allege that the Expert Group acted with actual malice. (See, e.g., Memo. at p. 13, ll. 10-11; p. 18, fn. 10; p. 19, ll. 5-9.)

“An anti-SLAPP suit motion is not a substitute for a demurrer or summary judgment motion.” (Lam v. Ngo (2001) 91 Cal.App.4th 832, 851, fn. 12.) “Unlike demurrers or motions to strike, which are designed to eliminate sham or facially meritless allegations, at the pleading stage a SLAPP motion, like a summary judgment motion, pierces the pleadings and requires an evidentiary showing.” (Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073, original italics.) To the extent the Expert Group contends that Nash has failed to allege facts sufficient to constitute a cause of action, these contentions are not relevant to the issues presented in the present motion. Even if the court were to consider these arguments, they are not persuasive for all reasons further discussed below.

“The limited purpose public figure is an individual who voluntarily injects him or herself or is drawn into a specific public controversy, thereby becoming a public figure on a limited range of issues.” (Ampex Corp. v. Cargle (2005) 128 Cal.App.4th 1569, 1577 (Ampex); see also Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 253- 254 (Reader’s Digest) [“the ‘limited purpose’ public figure loses certain protection for his reputation only to the extent that the allegedly defamatory communication relates to his role in a public controversy”].) “To characterize a plaintiff as a limited purpose public figure, the courts must first find that there was a public controversy.” (Copp v. Paxton (1996) 45 Cal.App.4th 829, 845 (Copp).) This means “the issue was debated publicly and had foreseeable and substantial ramifications for nonparticipants.” (Ampex, supra, 128 Cal.App.4th at p. 1577.)

Wholly absent from the FAC are any allegations which show that, at the time the Nash Profile was published, there existed a public controversy or debate about motorcycle safety. For example, the allegations of the FAC do not show that the motorcycle safety “is a subject that has garnered national attention and is the focus of widespread public interest.” (Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 25 (Gilbert).)

To support its contentions that Nash is a limited purpose public figure, the Expert Group submits a declaration of their counsel, Rachel R. Goldberg (Goldberg), to which are attached court records and other materials purporting to show that Nash has testified that he is a published bike builder who has been featured in magazines and industry books, and that Nash set up a web site to publicize his work. (Goldberg Decl., ¶¶ 2, 13-15, & Exhs. B, M-O.) The Expert Group fails to show why the content of any of these materials demonstrates the existence of a public controversy regarding the issue of motorcycle safety, or that publication of the Nash Profile, which is the alleged defamatory communication at issue in this case, relates to Nash’s role in a public controversy or debate regarding motorcycle safety.

Also attached to the Goldberg declaration are five media articles discussing the work and testimony of, and challenges asserted to, various experts in what the Expert Group contends were highly publicized trials involving Harvey Weinstein, Sean “Diddy” Combs, Johnny Depp and Amber Heard, O.J. Simpson, and JonBenet Ramsey. (See, e.g., Goldberg Decl., ¶¶ 3-6, 8, & Exhs. C-F & H.) The Expert Group fails to show why these articles, or the cases addressed in these articles, relate to any public controversy regarding motorcycle safety.

Even if the court were to assume without deciding that there exists a public controversy regarding motorcycle safety, neither the FAC nor the materials submitted with the Goldberg declaration show that Nash has “undertaken some voluntary act through which he ... sought to influence resolution of the public issue....” (Gilbert, supra, 147 Cal.App.4th at p. 24.)

For example, while the materials submitted with the Goldberg declaration may show a demand for Nash’s services, that Nash achieved some notoriety with respect to designing or building motorcycles, or that unrelated cases in which expert testimony was provided have garnered media attention, these materials do not show that Nash undertook “some voluntary act through which he seeks to influence the resolution of the public issues involved.” (Reader’s Digest, supra, 37 Cal.3d at p. 254, original italics.) In addition, the single article submitted by the Expert Group addressing a lawsuit in which Nash served as a motorcycle expert includes no reference to Nash or his expert testimony or credentials. (Goldberg Decl., ¶ 9 & Exh. I.)

Assuming that the materials offered by the Expert Group are sufficient to show that Nash “thrust himself into the public eye” as an expert on motorcycles and motorcycle safety, “that alone did not cause him to become a limited purpose public figure in the context of this case.” (Grenier v. Taylor (2015) 234 Cal.App.4th 471, 485 (Grenier).) By way of example, the court in Grenier noted that plaintiff’s “self-promotion as a spiritual leader guiding others on Christian morals did not open him up to public comment on private conduct that could be generally characterized as the antithesis of the morals he espouses, such as child abuse and theft. To hold that a member of the clergy can become a limited purpose public figure on any issue relating to morality simply because of his or her profession would be equivalent to holding that being a member of the clergy makes one an all purpose public figure.” (Ibid.)

A similar analysis applies here. For all reasons discussed above, the Expert Group’s “interpretation of the limited purpose public figure doctrine is too broad. Rather, [Nash] must have voluntarily acted to influence the resolution of a discrete public controversy. The subject of [motorcycle safety] is too general and amorphous to qualify as such a controversy. [Nash] did not thrust himself into a public controversy or dispute regarding [motorcycle safety]. Accordingly, ... [Nash] is not a limited purpose public figure for purposes of his defamation claims.” (Grenier, supra, 234 Cal.App.4th at p. 485.) For all reasons discussed above, the factual arguments advanced by the Expert Group, which would effectively make all motorcycle safety experts such as Nash all purpose public figure, do not show that Nash undertook some voluntary act to “thrust” himself into a public controversy regarding motorcycle safety, including with respect to DUI offenses.

Furthermore, even if the court were to determine that the Expert Group has made a sufficient showing that Nash’s “own credentials assume such relevance” to any public controversy regarding motorcycle safety, the Expert Group fails to show why the defamation alleged in this case was “ ‘germane to [Nash’s] participation in [any] controversy.’ [Citation.]” (Copp, supra, 45 Cal.App.4th at pp. 845-846.) Instead, the Expert Group’s showing indicates, at best, that Nash’s expert services relate to the general issue of motorcycle safety and not any public controversy regarding this issue.

The examples provided above are intended to be illustrative but not exhaustive. For all reasons discussed above, the Expert Group has failed to show that Nash is a limited public figure who is required “to prove actual malice by clear and convincing evidence.” (Copp, supra, 45 Cal.App.4th at p. 845.)

Even if Nash were required to prove actual malice, Nash can meet this burden with clear and convincing evidence that the defamatory publication was made “with knowledge of its falsity or with reckless disregard of its truth or falsity.” (Copp, supra, 45 Cal.App.4th at p. 846.) Though there is no evidence or information in the present record to suggest or indicate that the Expert Group had actual knowledge of the falsity of the statement regarding the “DUI third offense” appearing in the Nash Profile before January 29, 2025, the date Talve discovered the statement, “[i]t is a close question, however, whether the evidence is sufficient to sustain [Nash’s] burden of proving reckless disregard for truth or falsity.” (Ibid.)

Though the issue of actual malice “turns on the subjective good faith of the defendant, the plaintiff may attempt to prove reckless disregard for truth by circumstantial evidence, ‘A failure to investigate [citation], anger and hostility toward the plaintiff [citation], reliance upon sources known to be unreliable [citations], or known to be biased against the plaintiff [citations]—such factors may, in an appropriate case, indicate that the publisher himself had serious doubts regarding the truth of his publication.’ [Citation.]” (Copp, supra, 45 Cal.App.4th at p. 847.)

As further discussed above, available information and evidence shows that the expert witness profiles published on the website by the Expert Institute effectively include a “due diligence” analysis of the expert identified in the profile. (See, e.g., FAC, Exh. 1 [Expert Institute article regarding expert witness “due diligence”]; Talve Decl., ¶ 8 & Exh. A at pdf p. 9 [“Radar” includes information on an expert’s risk and credibility and background check].) The Expert Group submits no information to show why Expert Radar, a tool on which EIG and the Expert Institute relied to “parse” through third party sources and organize voluminous information about experts in order to provide that information within a single expert profile, is a reliable source of due diligence data. Instead, a reasonable trier of fact could infer from the inclusion of undisputedly false information regarding DUI offenses in the Nash Profile, that Expert Radar is not a reliable source.

In addition, considering that the Expert Group’s evidence shows that the information appearing in the expert witness profiles published on the website is not edited, and that no person at EIG was aware of any inaccuracies in the Nash Profile until January 29, 2025, it can also be inferred from the available information and evidence EIG and the Expert Institute did not review the information collected by Expert Radar and published on the website for accuracy or truthfulness notwithstanding that the profiles are provided for the purpose of streamlining expert witness due diligence.

Under the totality of the circumstances present here, and for all reasons discussed above, there exists evidence and information in the present record which, if credited, is sufficient to establish a probability that Nash “can produce clear and convincing evidence that the allegedly defamatory statements were made ... with reckless disregard of their truth or falsity.” (Ampex, supra, 128 Cal.App.4th at p. 1578.) At a minimum, there is some conflict in the evidence with respect to the issue of actual malice under the circumstances present here, requiring that the motion be denied. (Billauer, supra, 88 Cal.App.5th at pp. 964-965.)

The Expert Group further contends that Nash cannot establish a probability that he will prevail on the second cause of action because Nash has failed to allege how or when the statement at issue was purportedly republished, because Nash himself made statements about the information appearing in the Nash Profile and therefore consented to the defamation, and because Nash did not make any false statement about DUI offenses and instead stated that he did not have any such offenses.

In the Nash declaration, Nash states that on January 29, 2025, he discovered the Nash Profile containing the false statement regarding three DUI offenses and that “Google” was republishing the false statement regarding DUI offenses appearing in the Nash Profile. (Nash Decl., ¶¶ 8-9.) The Expert Group offers no evidence or information to rebut this statement.

Noted above, a cause of action for defamation arises “each time the defamatory matter is published, even if the originator of the defamatory matter did not republish the defamatory matter, as long as republication should have been reasonably foreseeable by the originator.

“The person defamed suffers injury each time the defamatory matter is published (or republished) and therefore a separate cause of action accrues for each publication. Each publication is a separate wrongful act.” (Schneider v. United Airlines, Inc. (1989) 208 Cal.App.3d 71, 77.)

As further discussed above, the Expert Group concedes that the Nash Profile was published on September 4, 2025, and submits no evidence or information to rebut Nash’s contention that the Nash Profile remained viewable, including on “Google” after that date and until at least January 30, 2025. Based on the evidence provided by Nash, and inferences that may be drawn from this evidence, Nash has made a sufficient showing that the Nash Profile was effectively reprinted or republished after the date of its first publication. The Expert Group also offers no evidence or information to show why any republication or reprinting of the Nash Profile, including on “Google”, was not reasonably foreseeable.

Nash further declares that “[s]ince January 29, 2025, on a number of occasions I have been forced and compelled to self-publish and refute the defendants’ false and defamatory publication that I have DUIs, to potential customers who were inquiring regarding my services as an expert. Although I have tried to explain to the potential customers that the publication was false, on at least one occasion I saw that a potential customer’s attitude and interest drastically changed when I disclosed this information, that potential customer decided not to hire me, and I am informed and believe that potential customer decided not to hire me because of defendants’ false publication. As a result, I lost that business and the income I would have earned if it had not been lost.” (Nash Decl., ¶ 12.)

“For a valid defamation claim, the general rule is that ‘the publication must be done by the defendant.’ [Citation.] There is an exception ‘[w]hen it [is] foreseeable that [the] defendant’s act would result in [a plaintiff’s] publication to a third person.’ [Citation.] For the exception to apply, the defamed party must operate under a strong compulsion to republish the defamatory statement, and the circumstances creating the compulsion must be known to the originator of the statement at the time he or she makes it to the defamed individual.” (Tilkey v. Allstate Ins. Co. (2020) 56 Cal.App.5th 521, 541-542 (Tilkey).)

The information presented in the Nash declaration and described above, which is not disputed by the Expert Group, is sufficient to show or infer that Nash operated under a strong compulsion to republish the statement regarding a third DUI offense contained in the Nash Profile to potential customers, in order to refute those statements. The arguments presented by the Expert Group are also insufficient to show that the circumstances creating the compulsion were not known to them as of the date EIG discovered the existence of the Nash Profile on the website. By way of example, the Expert Group presents no evidence to show that each instance of any self-publication by Nash occurred before the date Nash alerted EIG of the false statements appearing in the Nash Profile.

“[C]ompelled self-published defamation is a viable theory....” (Tilkey, supra, 56 Cal.App.5th at p. 530.) The court in Tilkey did not limit its decision to the employment claims at issue in that case as the Expert Group appears to suggest. The Expert Group also does not cite, and the court is unaware of, any legal authority showing that the compelled self-publication theory alleged in the second cause of action applies only in the employment context, or does not apply under the circumstances present here.

For all reasons further discussed above, the court finds that Nash has presented information and evidence which is sufficient to establish a probability of prevailing on the claims asserted in the second cause of action. The Expert Group’s showing fails to defeat that of Nash.

As to the Expert Group’s contention that LLCP cannot be held liable for any defamatory statements appearing in the Nash Profile based on information appearing in the Rich and Talve declarations, the same reasoning and analysis set forth above apply.

The court finds that Nash has, for all reasons described above, “stated and substantiated” legally sufficient claims against the Expert Group for defamation as alleged in the first and second causes of action of the FAC, based on the publication of the Nash Profile containing a false statement regarding a “DUI third offense”. (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 412.) The court also finds that these claims have “the requisite minimal merit [required to] proceed.” (Navellier, supra, 29 Cal.4th at p. 94.) Further, the Expert Group’s showing fails to defeat Nash’s showing as a matter of law for the reasons further discussed above. Therefore, and notwithstanding whether the Expert Group has made a prima facie showing that the causes of action alleged in the FAC arise from protected activity under section 425.16, subdivision (b)(3) or (4) (which the court need not presently decide), the motion will be denied.

The Expert Group’s requests for judicial notice:

The Expert Group submits a request for judicial notice of: (1) a copy of the testimony of Nash (the Nash Testimony) given on May 14, 2019, in United States District Court, District of New Mexico case no. CV-17-00244-KBM-JHR; (2) media publications entitled “Who is Dr. Dawn Hughes? Forensic psychologist to take the stand in Weinstein and Diddy trials”, “Johnny Depp Stans Are Now Attacking a Court Psychologist”, “Meet the forensic psychologist set to testify at both Weinstein and Combs trials”, “Documentary focuses on the forensics of Dr. Henry Lee”, “Connecticut to pay $25m settlement to men wrongly convinced in 1985 murder”, “Forensic scientist Henry Lee, known for O.J. Simpson and JonBenet Ramsey cases, found liable for fabricating evidence in wrongful murder convictions”, “Decision of the Day: Judge Reduces $287M Jury Verdict Against Harley-Davidson in Wrongful Death Suit”, and “Jury finds for Caledonia man in lawsuit against Harley-Davidson” (collectively, the Articles); (3) the results of a “Westlaw Public Records database search for the keywords ‘William’ and ‘Nash’ narrowing by records involving DUI or DWI” (the Westlaw Results) with “highlights” which the Expert Group contends “reflect individuals named William Nash who have associated DUI or DWI offenses...”; and (4) “forensic capture[s]” (the Captures) of various pages from Nash’s website dated April 24, 2025. (Expert Group RJN at pp. 2-4, Sections A & B; Goldberg Decl., ¶¶ 2-15 & Exhs. B-O;.)

Absent any objection by Nash, the court will exercise its discretion to grant the Expert Group’s request for judicial notice of the Nash Testimony, the Articles, and the Captures. (Evid. Code, § 452, subd. (d)(2) & (h); see also Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 808, fn. 5 (Seelig) [exercising discretion to judicially notice news articles discussing topics at issue which were not reasonably subject to dispute].) Judicial notice does not extend to the truth of any factual assertions contained in these documents, or to their proper interpretation. (Seelig, supra, 97 Cal.App.4th at p. 808, fn. 5; StorMedia Inc. v. Superior Court (1999) 20 Cal.4th 449, 457, fn. 9.)

As to the Westlaw Results, the information appearing in this document does not appear relevant or material to the issues presented in the motion, or to the court’s determination of those issues. (Evid. Code, § 350; Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled on other grounds in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.) For these reasons, the court will deny the Expert Group’s request for judicial notice of the Westlaw Results.

The Expert Group also submits with its reply a new request for judicial notice of an order (the Order) entered on May 19, 2025, in civil action no. 23-A-04860-2 filed with the Superior Court of Gwinnett County, State of Georgia. (Expert Group Reply RJN, p. 2, Section A; Supplemental Goldberg Decl., ¶ 2 & Exh. P.) As grounds for this request, the Expert Group contends that the Order is relevant “because it reflects the court’s holding that ... the use of artificial intelligence cannot establish actual malice because, among other things, it does not show the defendant ‘had a subjective awareness of probable falsity’ when the statement was published.” (Expert Group Reply RJN at p. 2, ll. 22-25.)

“The general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.) Further, and considering that the present motion operates in effect like a summary judgment motion to the extent it requires an evidentiary showing as further discussed above, it is error for the court to “consider[] evidence first submitted with the reply....” (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 310.)

In addition, “out-of-state decisions are not binding on this court....” (Episcopal Church Cases (2009) 45 Cal.4th 467, 490.) Moreover, “a written trial court ruling has no precedential value.” (Santa Ana Hospital Medical Center v. Belshe (1997) 56 Cal.App.4th 819, 831.) “A trial court judgment cannot properly be cited in support of a legal argument, absent exceptions not applicable here.” (San Diego County Employees Retirement Assn. v. County of San Diego (2007) 151 Cal.App.4th 1163, 1184.) The isolated Order, which was entered in an unrelated, out-of-state lawsuit, is not binding, has no precedential value, and is not citable authority. The court does not consider out of state trial court decisions in its analysis.

For all reasons discussed above, the court will deny the Expert Group’s request, made for the first time in reply, for judicial notice of the Order.

(3) The Application

“A person who is not a licensee of the State Bar of California but who is an attorney in good standing of and eligible to practice before the bar of any United States court or the highest court in any state, territory, or insular possession of the United States, and who has been retained to appear in a particular cause pending in a court of this state, may in the discretion of such court be permitted upon written application to appear as counsel pro hac vice, provided that an active licensee of the State Bar of California is associated as attorney of record. No person is eligible to appear as counsel pro hac vice under this rule if the person is:

“(1) A resident of the State of California;

“(2) Regularly employed in the State of California; or

“(3) Regularly engaged in substantial business, professional, or other activities in the State of California.” (Cal. Rules of Court, rule 9.40(a).)

“A person desiring to appear as counsel pro hac vice in a superior court must file with the court a verified application together with proof of service by mail in accordance with Code of Civil Procedure section 1013a of a copy of the application and of the notice of hearing of the application on all parties who have appeared in the cause and on the State Bar of California at its San Francisco office. The notice of hearing must be given at the time prescribed in Code of Civil Procedure section 1005 unless the court has prescribed a shorter period.” (Cal. Rules of Court, rule 9.40(c)(1).)

“The application must state:

“(1) The applicant’s residence and office address;

“(2) The courts to which the applicant has been admitted to practice and the dates of admission;

“(3) That the applicant is a licensee in good standing in those courts;

“(4) That the applicant is not currently suspended or disbarred in any court;

“(5) The title of each court and cause in which the applicant has filed an application to appear as counsel pro hac vice in this state in the preceding two years, the date of each application, and whether or not it was granted; and

“(6) The name, address, and telephone number of the active licensee of the State Bar of California who is attorney of record.” (Cal. Rules of Court, rule 9.40(d)(1)-(6).)

The application is verified. Court records also reflect that on May 2, 2025, defendants filed a notice of the hearing of the application. The proof of service filed by defendants on the same date shows that a copy of the notice, together with the application, was served on Nash. The notice appears to have been given within the time prescribed in Code of Civil Procedure section 1005. For these reasons, the court finds that the application procedurally complies with California Rules of Court, rule 9.40(c)(1).

In support of the application, Bolger submits a declaration, which is made under penalty of perjury, stating that Bolger resides in New York, and has an office located at 1251 Avenue of the Americas, 21st Floor, New York, NY 10020-1104. (Bolger Decl., ¶¶ 2-3.) Bolger is not regularly engaged in the practice of law or other business in the State of California. (Bolger Decl., ¶ 7.)

Bolger further states that she has been admitted to the court of New York, the Tax Court of the United States, the United States Supreme Court, the United States District Court for the Western District of New York, Eastern District of New York, Southern District of New York, and Northern District of Illinois, and the Second, Third, Fourth, Fifth, Seventh, Eighth, Ninth, and Eleventh Circuits of the United States Court of Appeals. (Bolger Decl., ¶ 4.) Bolger provides the dates of admission to each of these courts, and states that she is a member in good standing in each of these courts. (Bolger Decl., ¶¶ 4 & 6.)

Bolger asserts that she is not currently suspended or disbarred in any court, has never been subject to discipline by any court or administrative body, and has never been denied admission to the courts of any state or to any federal court. (Bolger Decl., ¶ 5.)

In the preceding two years, Bolger applied to appear as counsel pro hac vice in the Superior Court for the County of San Francisco case no. CGC-23-604339 entitled  Robert M. Linblad v. Jennifer Corbett, et al.. (Bolger Decl., ¶ 8.) That application was granted. (Ibid.)

The attorney of record with whom Bolger is associated in this matter Goldberg whose address and telephone number are provided in the Bolger declaration. (Bolger Decl., ¶ 10.)

Bolger understands that if the application is granted, Bolger will be subject to the jurisdiction of the courts of this state with respect to the law of the state governing the conduct of attorneys to the same extent as a member of the State Bar of California. (Bolger Decl., ¶ 11.) Bolger declares that she will familiarize herself and comply with the standards of professional conduct required of members of the State Bar of California and understands that she will be subject to the disciplinary jurisdiction of the State Bar with respect to any of Bolger’s acts occurring in this court, and that Article 5, Chapter 4, Division III, of the California Business and Professions Code and the Rules of Procedure of the State Bar will govern in any investigation or proceeding conducted by the State Bar under California Rules of Court, rule 9.40. (Ibid.) Bolger further states that she is familiar with the Rules of the State Bar of California and this court’s Local Rules and agrees to comply with these rules. (Bolger Decl., ¶ 9.)

Defendants also submit a declaration of Goldberg, who states that Bolger has been directing all of the substantive issues in the case and that defendants seek to have Bolger serve as their counsel in this action. (Goldberg Decl. [application], ¶ 3.) Goldberg further states that a copy of the application and all supporting documents, including the Bolger and Goldberg declarations, were served on the San Francisco office of the State Bar of California with the necessary fee. (Goldberg Decl. [application], ¶ 7.)

The information submitted in support of the application and further discussed above shows that Bolger is not a California resident, is not regularly employed in California, and is not regularly engaged in business, professional, or other activities in California. (See Walter E. Heller Western, Inc. v. Superior Court (1980) 111 Cal.App.3d 706, 711 [applying provision set forth in Cal. Rules of Court, rule 9.40(a)].) There is no information to suggest that Bolger has repeatedly appeared as an attorney pro hac vice. (Cal. Rules of Court, rule 9.40(b).) Information appearing in the Goldberg declaration and described above also shows that defendants desire that Bolger serve as their counsel in this case. (Big Lots Stores, Inc. v. Superior Court (2020) 57 Cal.App.5th 773, 779 [discussion of “deference owed to a party’s counsel of choice...”].) In addition, the court finds that the application states all of the matters set forth in California Rules of Court, rule 9.40(d).

For all reasons further discussed above, the court finds that the application is procedurally and substantively appropriate and complies with court rules. Therefore, the court will exercise its discretion to grant the application.