Gavin C. Newsom v. Fox News Network, LLC

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

GAVIN C. NEWSOM, )
)
Plaintiff, )
)
v. ) Case No. N25C-06-251 SPL
)
FOX NEWS NETWORK, LLC, )
)
Defendant. )

Submitted: January 30, 2026
Decided: April 30, 2026

MEMORANDUM OPINION AND ORDER

On Fox News Network, LLC’s
Motion to Dismiss the Amended Complaint and
Special Motion to Strike,
DENIED.

On Fox News Network, LLC’s
Motion for Attorneys’ Fees and Costs Incurred in
Moving to Strike Plaintiff’s Claim under Unfair Competition Law,
DENIED.

Michael J. Teter, Esq. (Argued), LEGAL ACCOUNTABILITY CENTER TETER LEGAL,
Salt Lake City, Utah, Mark Bankston, Esq., FARRAR & BALL LLP, Houston, Texas,
Brian E. Farnan, Esq., Michael J. Farnan, Esq., FARNAN LLP, Wilmington,
Delaware, Attorneys for Plaintiff, Gavin C. Newson.

Patrick F. Philbin, Esq. (Argued), Kyle T. West, Esq., Chase T. Harrington, Esq.
TORRIDON LAW PLLC, John L. Reed, Esq. of DLA PIPER LLP (US), Attorneys for
Defendant, Fox News Network, LLC.

LUGG, J.
INTRODUCTION

In the midst of civil unrest in Los Angeles, California, Governor Gavin C.

Newsom spoke on the telephone with President Donald Trump. The call took place

after 10:00 p.m. on the night of Friday, June 6, 2025 (Pacific Daylight Time) (after

1:00 a.m. on Saturday, June 7, 2025 (Eastern Daylight Time)). The two did not speak

again before President Trump, at a Tuesday, June 10, 2025, Oval Office press

conference, was asked when he last spoke with Governor Newsom; President Trump

responded that he and Governor Newsom spoke “[a] day ago.” Soon thereafter,

Governor Newsom posted on X that “[t]here was no call.” President Trump then

provided Fox News Network (“FNN”) reporters a “phone log” evidencing the Friday

night / Saturday morning call he had with Governor Newsom. On this information,

FNN published – through nationally televised reporting overlaid by chyron1 – that

“Gavin Lied About Trump’s Call.”

Governor Newsom sued FNN for defamation. FNN has moved to dismiss and

has moved for attorneys’ fees and costs incurred in its effort to strike Governor

Newsom’s California Unfair Competition Law claim. Having reviewed and

considered the Amended Complaint, the parties’ briefing and arguments, and the

record in this case, the Court denies FNN’s motions.

1
A “chyron” is “a caption superimposed over usually the lower part of a video image
(as during a news broadcast.)”
https://www.merriam-webster.com/dictionary/chyron.
1
FACTUAL AND PROCEDURAL BACKGROUND2

On June 6, 2025, at approximately 10:23 p.m. Pacific Daylight Time (or June

7, 2025, at approximately 1:23 a.m. Eastern Time), California Governor Gavin

Newsom spoke on the telephone with President Donald Trump for about 16

minutes.3 The next day, Governor Newsom discussed this conversation in an

interview with MSNBC.4 Other news outlets covered Governor Newsom’s

statements about the call,5 and, on Sunday, June 8, 2025, Fox News Sunday, The Big

Weekend Show, and Life, Liberty, & Levin noted that a call occurred between

Governor Newsom and President Trump.6 On Monday, June 9, 2025, a local FNN

2
The facts are drawn from the Amended Complaint and, to the extent necessary to
decide the pending motions, the attachments supplementing the parties’ briefs. On
a motion to dismiss, the Court views all well-pled facts as true and in a light most
favorable to Governor Newsom, the non-moving party. See e.g. Cent. Mortg. Co. v.
Morgan Stanley Mortg. Cap. Holdings LLC, 27 A.3d 531, 536 (Del. 2011). “Indeed,
it may, as a factual matter, ultimately prove impossible for the plaintiff to prove his
claims at a later stage of a proceeding, but that is not the test to survive a motion to
dismiss.” Id.
The Governor of California and the President of the United States are principal
actors. And, while the lawsuit is brought by the Governor of California in his
individual capacity, his position as Governor is pertinent to an assessment of his
defamation claim. For these reasons, unless quoting a source that declines to provide
these individuals’ titles, the Court will refer to these individuals as Governor
Newsom and President Trump.
3
D.I. 14 (“Amend. Compl.”) ¶ 20.
4
Id. ¶ 22.
5
Id. ¶¶ 23, 24, 27.
6
Id. ¶ 27.
2
affiliate aired an interview between Governor Newsom and FNN reporter Elex

Michaelson, in which Governor Newsom discussed his phone call with President

Trump.7

On Tuesday, June 10, 2025, during a press conference in the White House

Oval Office, President Trump discussed the civil unrest in Los Angeles, his plan to

deploy the National Guard, and his criticisms of Governor Newsom.8 A reporter

asked President Trump, “[w]hen was the last time you spoke to Governor

Newsom?”9 President Trump responded “A day ago. Called him to tell him, got to

do a better job, he’s doing a bad job. Causing a lot of death and a lot of potential

death.”10

Governor Newsom, on X, responded to a video clip of President Trump’s

statement about a call “[a] day ago” writing that “There was no call. Not even a

voicemail. Americans should be alarmed that a President deploying Marines onto

our streets doesn’t even know who he’s talking to.”11 Informed of Governor

Newsom’s X post, President Trump provided FNN host John Roberts a screenshot

7
Id. ¶¶ 24, 25, 26.
8
Id. ¶¶ 30, 32.
9
Id. ¶ 33.
10
Id. ¶ 34.
11
Id. ¶ 35.
3
of his call log revealing the sixteen-minute phone conversation between Governor

Newsom and President Trump on June 7, 2025.12

Roberts, on X, then replied to Governor Newsom’s statement that “[t]here was

no call,” by posting:

President Trump just contacted me from Air Force 1 to say this: “First
call was not picked up. Second call, Gavin picked up, we spoke for 16
minutes. I told him to, essentially, ‘get his ass in gear,’ and stop the
Riots, which were out of control. More than anything else, this shows
what a liar he is – Said I never called. Here is the evidence.”13

Roberts did not include the screenshot of President Trump’s call log with his X

post.14 On the afternoon of June 10, 2025, reporting on FNN, Roberts referenced

the call between Governor Newsom and President Trump,15 describing President

Trump as stating the call occurred “yesterday or the other day.”16

Later in the evening of June 10, Jesse Watters, on his FNN show Jesse Watters

Primetime, played an edited clip of the Oval Office press conference.17 The edited

footage included President Trump’s comment, “Called him to tell him, got to do a

better job, he’s doing a bad job. Causing a lot of death and a lot of potential death,”

12
Id. ¶ 36.
13
Id. ¶37.
14
Id. ¶ 37.
15
Id. ¶ 40.
16
Id. ¶ 41.
17
Id. ¶ 45.
4
but omitted President Trump’s statement that he spoke to Governor Newsom “[a]

day ago.”18 Watters then commented:

Newsom responded, and he said there wasn’t a phone call. He said
Trump never called him. Not even a voicemail, he said. But John
Roberts got Trump’s call logs, and it shows Trump called him late
Friday night and they talked for 16 minutes. Why would Newsom lie
and claim Trump never called him? Why would he do that?19

The chyron appearing below Watters during his report displayed a “Fox News Alert”

that “Gavin Lied About Trump’s Call.”20

Governor Newsom, on June 27, 2025, issued a retraction demand to FNN and

initiated a defamation lawsuit in Delaware.21 On July 17, 2025, Watters, on Jesse

Watters Primetime, addressed his June 10, 2025, report.22 Watters played the

unedited video of President Trump’s response to the question: “When was the last

time you spoke to Governor Newsom?” and included President Trump’s response

that he and Governor Newsom spoke “[a] day ago.” 23 Watters explained that, in his

June 10 report, he excluded President Trump’s response that the call occurred “[a]

18
Id. ¶ 47.
19
Id. ¶ 47.
20
Id. ¶ 48.
21
Id. ¶ 74; D.I. 18 (“Def. Mot.”), Ex. E; D.I. 1.
22
Amend. Compl. ¶ 75.
23
Id. ¶ 75.
5
day ago” because “it didn’t seem relevant.”24 Watters stated that he understood

Governor Newsom’s post – “[t]here was no call. Not even a voicemail” – to mean

there was never a call between Governor Newsom and President Trump, not that

President Trump’s description of the timing of the call was incorrect.25 Watters

concluded by noting, “[Newsom] didn’t deceive anybody on purpose, so I’m sorry,

he wasn’t lying. He was just confusing and unclear. Next time, Governor, why don’t

you just say what you mean.”26 The chyron beneath Watters read, “Gavin Didn’t

Lie, He Was Just Sloppy.”27

Governor Newsom amended his original complaint to remove the California

Unfair Competition Claim and to include Watters’ July 17, 2025, response to the

retraction demand.28 FNN moved to dismiss the amended complaint on September

25, 2025.29 Upon Governor Newsom’s withdrawal of the Unfair Competition Claim

in his amended complaint, FNN now seeks attorneys’ fees and costs incurred in filing

its original motion and as a “prevailing party” under California’s anti-SLAPP law.30

24
Id. ¶ 75.
25
Id. ¶ 75.
26
Id. ¶ 75.
27
Id. ¶ 75.
28
See id.
29
Def. Mot.
30
D.I. 17 at 1-2.
6
FNN contends the complaint must be dismissed under the doctrine of forum

non conveniens because allowing the lawsuit to proceed in Delaware would impose

a substantial hardship on FNN.31 As to Governor Newsom’s defamation claim, FNN

asserts the complaint fails to plausibly allege: (1) facts showing Watters’ statement

was substantially untrue; (2) the statement was not a protected opinion; and (3) actual

malice.32 Governor Newsom responded in opposition,33 and FNN replied.34 The

Court heard oral argument on January 30, 2026, and took the matter under

advisement.35

31
Def. Mot. at 2, 10.
32
Id. at 3.
33
D.I. 23 (“Pl. Resp.”).
34
D.I. 30 (“Def. Reply”).
35
D.I. 32.
7
ANALYSIS

I. FORUM NON CONVENIENS

A. Legal Standard for forum non conveniens claims

FNN argues that this case, to the extent that it belongs anywhere, does not

belong in Delaware.36 Governor Newsom contends that FNN has not shown an

overwhelming hardship compelling dismissal of the Delaware case.37 The parties

appear to agree that California substantive law controls.38 On the record before it,

the Court finds that California law applies to the substantive issues raised by

Governor Newsom’s defamation claim,39 and that Delaware procedural law

controls.40

Delaware Superior Court Civil Rule 12(b)(3) governs a motion to dismiss

based on forum non conveniens.41 The doctrine of forum non conveniens empowers

this Court to “decline to hear a case despite having jurisdiction over the subject

36
Def. Mot. at 9.
37
Pl. Resp. at 6.
38
Def. Mot. at 11; Pl. Resp. at 8-9.
39
Restatement (Second) of Conflict of Laws § 150 (Am. Law Inst. 1971) (“the state
of most significant relationship will usually be the state where the [plaintiff] was
domiciled at the time, if the matter complained of was published in that state.”).
40
See, e.g., US Dominion, Inc. v. Fox News Network, LLC, 2021 WL 5984265 at *18
(Del. Super. Ct. Dec. 16, 2021).
41
Arrowood Indem. Co. v. AmerisourceBergen Corp., 2023 WL 2726924, at *8 (Del.
Super. Ct. Mar. 30, 2023).
8
matter and the parties.”42 Delaware Courts rarely grant relief “based on forum non

conveniens, and the doctrine is not a vehicle by which the Court should determine

which forum would be most convenient for the parties.”43 The doctrine allows the

Court to exercise some control over a foreign plaintiff’s access to a forum in

Delaware.44 “Forum non conveniens motions are addressed to the trial court’s

discretion”45 and are only granted in “rare case[s].”46

Where there are no issues of prior pendency in other jurisdictions, this Court,

in assessing a forum non conveniens claim, considers the “Cryo-Maid factors”:

(1) the relative ease of access to proof; (2) the availability of
compulsory process for witnesses; (3) the possibility of the view of the
premises; (4) whether the controversy is dependent upon the
application of Delaware law which the courts of this State more
properly should decide than those of another jurisdiction; (5) the
pendency or nonpendency of a similar action or actions in another

42
Chrysler First Bus. Credit Corp. v. 1500 Locust Ltd. Partnership, 669 A.2d 104,
106 (Del. 1995).
43
In re Citigroup, Inc. S’holder Derivative Litig., 964 A.2d 106, 117 (Del. Ch. 2009)
(citing Taylor v. LSI Logic Corp., 659 A.2d 1196, 1199 (Del. 1997)).
44
Ison v. E.I. DuPont de Nemours and Co., Inc., 729 A.2d 832, 839-42 (Del. 1999)
(examining doctrine of forum non conveniens and concluding that “[i]n Delaware
jurisprudence there is a proper place for dismissals based on forum non
conveniens.”).
45
GXP Cap., LLC v. Argonaut Mfg. Servs., Inc., 253 A.3d 93, 97 (Del. 2021).
46
Aimbridge Hosp., LLC v. Plaza Resort Atlantic Ocean LLC, 2024 WL 3949965,
at *2 (Del. Super. Ct. Aug. 26, 2024).
9
jurisdiction; and (6) all other practical problems that would make the
trial of the case easy, expeditious and inexpensive.47

Dismissal on forum non conveniens grounds requires the movant to show that

“overwhelming hardship and inconvenience” would result if dismissal is not

granted.48 “It is not enough that all of the Cryo-Maid factors may favor defendant.”49

Depriving the plaintiff of their chosen forum requires the movant to meet the high

burden of showing that the Cryo-Maid factors weigh so heavily that the defendant

will face overwhelming hardship if the lawsuit proceeds in Delaware.50 The

overwhelming hardship standard is not an “insurmountable burden for

defendants;”51 it is a “stringent,” but not “preclusive” standard.52 On the record here,

the Court concludes that FNN has failed to establish overwhelming hardship

warranting removal from this forum.

47
Martinez v. E.I. DuPont de Nemours and Co., Inc., 86 A.3d 1102, 1104 (Del. 2014)
(citing Taylor, 689 A.2d at 1198-99 (detailing the factors set forth in Gen. Foods
Corp. v. Cryo-Maid, Inc., 198 A.2d 681 (Del. 1964)).
48
BCORE Timber EC Owner LP v. Qorvo US, Inc., 2023 WL 2985250, at *2 (Del.
Super. Ct. Apr. 18, 2023).
49
Chrysler First Bus., 669 A.2d at 105.
50
See Ison, 729 A.2d 832, 842 (Del. 1999); see also Warburg, Pincus Ventures, L.P.
v. Schrapper, 774 A.2d 264, 267 (Del. 2001).
51
Martinez, 86 A.3d at 1105.
52
Id.
10
B. Application of the forum non conveniens standard

1. Relative Ease of Access of Proof

FNN contends that the Court should dismiss the Delaware action because it

involves “a California resident claiming California-based injuries, while Fox News

Network is headquartered in and produced the challenged statements in New

York.”53 Governor Newsom responds that where the defendant is a “larger, more

sophisticated entity,” such as FNN, “the hardship of out-of-state litigation is

lessened”54 and that California does not present a more favorable forum than

Delaware because witnesses are subject to Delaware process.55

The location of witnesses and evidence may stretch from New York, where

the broadcast initiated, to California, where Governor Newsom resides. But the

advancement of “modern methods of information transfer render concerns about

transmission of documents virtually irrelevant.”56 Likewise, modern methods of

transportation have lessened the Court’s concern about the travel of witnesses who

53
Def. Mot. at 10.
54
Pl. Resp. at 7.
55
Id. at 7-8.
56
In re CVS Opioid Ins. Litig., 2022 WL 3330427, at *7 (Del. Super. Ct. Aug. 12,
2022) (quoting Barrera v. Monsanto Co., 2016 WL 4938876, at *6 (Del. Super. Ct.
Sept. 13, 2016)).
11
live outside of Delaware.57 The use of video conferencing technology also provides

a viable method to reduce inconvenience, allowing witnesses to provide testimony

remotely and reducing the need for physical travel.58 And, as here, where “there is

no single forum or locality in which the bulk of witnesses are located, the location

of witnesses [does] not weigh in favor of one forum or the other.”59

Governor Newsom sued FNN in Delaware, FNN’s corporate home, for

statements published in a national broadcast. To be sure, some witnesses and

evidence may cross state lines; however, the associated burdens extend to both

Governor Newsom and FNN and, of course, there is no single forum convenient for

all parties and witnesses.

2. Availability of Compulsory Process for Witnesses

FNN contends that witnesses such as Governor Newsom’s staff and social

media team are beyond the Court’s compulsory process.60 Governor Newsom

responds that “he has subjected himself to this Court’s jurisdiction and compulsory

57
Rapoport v. Litigation Trust of MDIP Inc., 2005 WL 3277911, at *6 (Del. Ch. Nov.
23, 2005).
58
American Guar. & Liability Ins. Co. v. Intel Corp., 2009 WL 2589597, at *12 (Del.
Super. Ct. July 24, 2009).
59
Rapoport, 2005 WL 3277911, at *6 (cleaned up).
60
Def. Mot. at 10-11.
12
process will be available for him to testify” and that the witnesses relevant to this

matter are subject to compulsory process.61

To the extent there may be some difficulty in securing evidence, the Court

should consider whether “another forum would provide a substantial improvement

as to the number of witnesses who would be subject to compulsory process.”62 FNN

identifies Governor Newsom’s staff and social media team as witnesses whose

testimony would be unavailable if this case proceeds in Delaware.63 Not so.

California64 and Delaware65 have both adopted the Uniform Interstate Depositions

and Discovery Act which provides FNN the necessary tools to compel depositions

of any out-of-state witnesses. And extant technology mitigates any inconvenience

in case investigation and preparation; “video depositions or transcribed depositions

can be taken at most places where non-[party] witnesses are located.”66

61
Pl. Resp. at 8.
62
Mt. Hawley Ins. Co. v. Jenny Craig, Inc., 668 A.2d 763, 769 (Del. Super. Ct. 1995)
(citations omitted).
63
Def. Mot. at 10-11.
64
CAL. CIV. P. CODE § 2029.100 (West) (California Interstate and International
Depositions and Discovery Act).
65
10 Del.C. § 4311 (Delaware Uniform Interstate Depositions and Discovery Act).
66
Chrysler Fin. Corp. v. Fruit of the Loom, Inc., 1992 WL 19945, at *2 (Del. Super.
Ct. Feb. 4, 1992).
13
3. View of the Premises

The view of the premises generally holds “little to no weight even in a case

where there was a relevant ‘premises’ that the fact-finder might want to view.”67 But

here, this factor carries no weight because there is no premises to view or, viewed

another way, the premises may be viewed anywhere. Governor Newsom alleges

defamatory statements made during a national news broadcast. The briefing in this

case reveals that the partes are in possession of the pertinent “scene” – the broadcast

footage. The scene, or premises, is readily available for review and examination.68

4. Application of Delaware Law

This Court next considers “whether the controversy is dependent upon the

application of Delaware law which the courts of this State more properly should

decide than those of another jurisdiction.”69 When “important and novel issues”

stem from a different state’s law, that state is best positioned to determine the law’s

application.70 Nonetheless, “[w]hile not preferable, Delaware courts are accustomed

to applying the laws of sister states.”71

67
Hall v. Maritek Corp., 170 A.3d 149, 162 (Del. Super. Ct. 2017) (cleaned up).
68
See Doe v. Cahill, 884 A.2d 451, 464 (Del. 2005).
69
Martinez, 86 A.3d at 1109.
70
Id. at 1109-10.
71
GXP Capital, LLC, 234 A.3d at 1197 (citing Taylor, 689 A.2d at 1200).
14
FNN contends that, under Martinez v. E.I. DuPont de Nemours & Co., “courts

must give ‘weight to a defendant’s interest in having important issues of foreign law

decided by the courts whose law governs the case.’”72 Governor Newsom responds

this case does not present novel or challenging issues necessitating removal; he

points to the fact that Martinez involved a novel legal issue of Argentinian law,

foreign plaintiffs, and a foreign language.73 Governor Newsom argues Delaware as

the forum state in Martinez was impractical, while the challenges supporting

removal in Martinez are absent here.74

In Martinez, the Delaware Supreme Court affirmed this Court’s dismissal

under forum non conveniens where Argentinian nationals initiated a lawsuit in

Delaware invoking Argentinian substantive law, drafted in Spanish.75 The Delaware

Supreme Court found these factors, and the unique international policy issues,

rendered Argentina’s Courts best equipped to hear the case.76 The Court concluded

that Delaware is not a proper venue where “a Delaware court was being asked to

72
Def. Reply at 4.
73
Pl. Resp. at 5.
74
Id.
75
Martinez, 86 A.3d at 1106-07.
76
Id. at 1107-08.
15
decide complex and unsettled issues of Argentine tort law, based on expert testimony

extrapolating from sources of law expressed in a foreign language.”77

These unique considerations do not exist here. Delaware Courts are capable

of addressing defamation claims guided by the substantive law of a sister state. FNN

claims that California’s retraction statute and anti-SLAPP law provide important

protection to publishers like FNN and that should compel this Court to allow

California to decide this case.78 But Delaware courts are fully capable of applying

California law and “often decide legal issues—even unsettled ones—under the law

of other jurisdictions.”79 The application of California substantive law here is not a

compelling reason to grant dismissal under the doctrine of forum non conveniens.

5. Pendency of Similar Action in Other Jurisdictions

Where no other actions are pending between the parties, “the plaintiff’s choice

of forum is accorded even more weight.”80 The absence of other pending litigation

between Governor Newsom and FNN therefore “weighs significantly against”

granting FNN’s forum non conveniens motion.81

77
Id. at 1108 (Del. 2014) (cleaned up).
78
Def. Mot. at 9, 28-29.
79
Berger v. Intelident Solutions, Inc., 906 A.2d 134, 137 (Del. 2006) (citing Taylor,
689 A.2d at 1200).
80
Mar-Land Indus. Contractors, Inc. v. Caribbean Petroleum Refining, L.P., 777
A.2d 774, 778 (Del. 2001).
81
Berger, 906 A.2d at 137.
16
6. Other Practical Problems

The sixth and final Cryo-Maid factor examines “all other practical problems

that would make the trial of the case easy, expeditious, and inexpensive.”82 FNN

does not identify any other practical problems not previously addressed. FNN chose

to establish its corporate home in Delaware. In so doing, it has availed itself of the

benefits of this State. This self-selected domicile, too, serves to establish Delaware

as a jurisdiction for resolving suits against it. For this reason, and because the Cryo-

Maid factors do not favor dismissal, FNN’s motion to dismiss on the ground of forum

non conveniens is denied.

82
BCORE Timber, 2023 WL 2985250, at *7.
17
II. THE DEFAMATION CLAIM

A. The Rule 12(b)(6) standard for a defamation claim.

Delaware Superior Court Civil Rule 12(b)(6) governs a motion to dismiss for

failure to state a claim upon which relief can be granted.83 When assessing a motion

to dismiss under this rule, this Court must:

(1) accept all well pleaded factual allegations as true, (2) accept even
vague allegations as “well pleaded” if they give the opposing party
notice of the claim, (3) draw all reasonable inferences in favor of the
non-moving party, and (4) do not affirm a dismissal unless the plaintiff
would not be entitled to recover under any reasonably conceivable set
of circumstances.84

Delaware’s pleading standards at the motion to dismiss stage are minimal.85

This Court, in U.S. Dominion v. Fox, explained that even where the applicable

substantive state law contains an anti-SLAPP statute, Delaware’s conceivability

standard of review applies to a motion to dismiss.86 A complaint is sufficient to

survive a motion to dismiss under Rule 12(b)(6) “[if] a plaintiff may recover under

any reasonably conceivable set of circumstances susceptible of proof under the

complaint.”87 If, based on the circumstances presented, the plaintiff may recover,

83
Super. Ct. Civ. R. 12(b)(6).
84
Cent. Mortg. Co. v. Morgan Stanley Mortg. Capital Holdings LLC, 27 A.3d 531,
535 (Del. 2011).
85
Id. at 536.
86
2021 WL 5984265 at *18-19 (Del. Super. Ct. Dec. 16, 2021).
87
Spence v. Funk, 396 A.2d 967, 968, 972 (Del. 1978).
18
then the motion to dismiss must be denied.88 Conversely, a motion to dismiss will

be granted if “under no reasonable interpretation of the facts alleged could the

complaint state a complaint for which relief might be granted.”89 The Court need

not “accept conclusory allegations unsupported by specific facts . . . [or] draw

unreasonable inferences in the plaintiff’s favor.”90

Defamation suits call for additional scrutiny when evaluating a motion to

dismiss. “Early dismissal of defamation lawsuits for failure of the complaint to state

a claim on which relief can be granted not only protects against the costs of meritless

litigation, but provides assurance to those exercising their First Amendment rights

that doing so will not needlessly become prohibitively expensive.”91 Courts set a

“high bar to clear to establish defamation,” especially for claims made by a public

figure against the free press.92

B. Applicable substantive law.

This Court follows the Restatement (Second) of Conflict of Laws which

directs that the law of the jurisdiction with the “most significant relationship” to the

88
Id. at 968.
89
Unbound Partners Ltd. P’ship v. Invoy Holdings Inc., 251 A.3d 1016, 1023 (Del.
Super. Ct. 2021) (internal citations omitted).
90
Clinton v. Enterprise Rent-A-Car Co., 977 A.2d 892, 895 (Del. 2009).
91
ShotSpotter Inc. v. VICE Media, LLC, 2022 WL 2373418, at *6 (Del. Super. Ct.
Jun. 30, 2022) (cleaned up).
92
Id. (cleaned up).
19
case governs.93 The Restatement further specifies that “the state of the most

significant relationship will usually be the state where the [plaintiff] was domiciled

at the time, if the matter complained of was published in that state.”94 In Schmidt v.

Washington Newspaper Publishing Company, the plaintiff was a resident of

California, and no other state held a “more significant relationship” to the case;

therefore, that court applied California substantive law.95 So, too, here. The parties

do not identify another jurisdiction with any significant relationship to this case; in

fact, they appear to agree that California substantive law controls.96 In any event,

the Court will apply California substantive law because that is the plaintiffs’ home

state.

C. Federal Constitutional Considerations

To the extent First Amendment protections are asserted, the Court will apply

precedent assessing Constitutional protections applicable to defamation claims.97

“The Free Speech Clause of the First Amendment provides that ‘Congress shall

93
Smith v. Delaware State Univ., 47 A.3d 472, 480 (Del. 2012).
94
Restatement (Second) of Conflict of Laws § 150 (Am. Law Inst. 1971).
95
Schmidt v. Washington Newspaper Publ’g Co., 2019 WL 4785560, at *2 (Del.
Super. Ct. Sept. 30, 2019).
96
Def. Mot. at 11; Pl. Resp. at 8-9.
97
See Page v. Oath, 2021 WL 528472, at *3 (Del. Super. Ct. Feb. 11, 2021) (finding
a choice of law determination between New York and Delaware unnecessary for
defamation claims).
20
make no law . . . abridging the freedom of speech.’”98 But, Congress and the States

may impose liability for defamatory speech “subject to a number of constitutional

guardrails.”99 To be actionable, a statement must “be understood as defamatory by

a reasonable third party and was published.”100 “[W]hen the challenged statement

is on a matter of public concern, the plaintiff must demonstrate that the statement

was false.”101 Statements of opinion on matters of public concern “are not

categorically shielded from actionability.”102 Rather, to be actionable, defamatory

statements of opinion must “reasonably be interpreted as stating or implying

defamatory facts about an individual that are provably false.”103

Commentary relating to political, social, and other community concerns are

fairly considered addressing matters or public concern warranting greater

Constitutional scrutiny.104 The Delaware Supreme Court has concluded that

“statements on matters of public concern are actionable in defamation when, even if

98
Cousins v. Goodier, 283 A.3d 1140, 1148 (Del. 2022) (quoting U.S. CONST. amend
I) (cleaned up).
99
Id. (cleaned up).
100
Id. (cleaned up).
101
Id. (cleaned up).
102
Id. (cleaned up).
103
Id. (cleaned up).
104
Id. (cleaned up).
21
presented as ‘opinion,’ they may be reasonably construed as stating or implying

defamatory facts about an individual that are provably false.”105

For statements concerning a public official to be actionable, a plaintiff must

allege actual malice.106 “‘Actual malice’ means that a defendant published false

information about a plaintiff ‘with knowledge that it was false or with reckless

disregard of whether it was false or not.’”107 Reckless disregard is understood to

mean the defendant “entertained serious doubts as to the truth of [the] publication”

or had a “high degree of awareness of [its] falsity.”108 “The failure to investigate a

statement’s truth, standing alone, is not evidence of actual malice, even if a prudent

person would have investigated before publishing the statement. But a speaker

cannot purposefully avoid the truth and then claim ignorance.”109 If a plaintiff is

able to offer “some direct evidence that the defendant’s statement “was probably

false, the Court may infer that the defendant intended to avoid the truth.”110

105
Id. at 1155 (Del. 2022) (cleaned up).
106
New York Times Co. v. Sullivan, 376 U.S. 254, 279-280 (1964).
107
US Dominion, Inc., LLC, 2021 WL 5984265, at *28 (cleaned up).
108
US Dominion, Inc., 2021 WL 5984265, at *28 (cleaned up).
109
Id. (cleaned up).
110
Id. (cleaned up).
22
D. Governor Newsom’s defamation claim

Under California law, defamation “involves (a) a publication that is (b) false,

(c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or

that causes special damage.”111 “The defamatory statement must also specifically

refer to, or be ‘of and concerning,’ the plaintiff.”112 As explained in McGarry v.

University of San Diego, a valid defamation claim must be supported by statements

containing a “provable falsehood,” while generally protected, “expressions of

opinion may imply an assertion of objective fact and a statement that implies a false

assertion of fact, even if couched as an opinion can be actionable.”113

FNN argues that its statements cannot be proven false because they are

statements of opinion.114 Because falsity is a necessary element of defamation, “only

statements alleging facts can properly be the subject of a defamation action.”115 Pure

opinions are not actionable.116 Opinions do not, however, enjoy blanket

protection.117 “[W]here an expression of opinion implies a false assertion of fact,

111
Taus v. Loftus, 151 P.3d 1185, 1209 (Cal. 2007).
112
John Doe 2 v. Superior Court, 206 Cal.Rptr.3d 60, 68 (Cal. Ct. App. 2016).
113
64 Cal.Rptr.3d 467, 479 (Cal. Ct. App. 2007).
114
Def. Mot. at 15.
115
US Dominion, Inc., 2021 WL 5984265, at *26.
116
Id.
117
ZL Technologies, Inc. v. Does 1-7, 220 Cal.Rptr.3d 569, 589 (Cal. Ct. App. 2017).
23
the opinion can constitute actionable defamation.”118 Whether a statement

constitutes a statement of fact or opinion is a question of law.119 As such, this Court

must determine whether the statements expressed in FNN’s broadcasts are

actionable: “whether a reasonable fact finder could conclude that the published

statement declares or implies a provably false assertion of fact.”120

To answer this question, California Courts have developed a “totality of the

circumstances test,” under which the language and context of the statement are to be

examined.121 For the statement to be defamatory, it must be “understood in a

defamatory sense.”122 Where the indicia of an opinion piece are present, “readers

can be expected to discount the statements made in that context as more likely to be

the stuff of opinion than fact.”123 Courts must consider “the nature and full content

of the communication and the knowledge and understanding of the audience to

whom the publication was directed.”124

118
Id. at 589 (cleaned up).
119
Franklin v. Dynamic Details, 10 Cal.Rptr.3d 429, 436 (Cal. Ct. App. 2004).
120
Id.
121
Baker v. Los Angeles Herald Examiner, 721 P.2d 87, 90 (Cal. 1986).
122
Id.
123
Morningstar v. Superior Court, 29 Cal.Rptr.2d 547, 556 (Cal. Ct. App. 1994)
(quoting Smolla, Law of Defamation (1991) § 612[4] at 6-45 to 6-46).
124
Baker, 721 P.2d at 91.
24
California law has identified three types of defamation plaintiffs that “must

prove actual malice when defamatory speech relates to a matter of public concern:”

the public official, the general-purpose public figure, and the limited purpose public

figure.125 Whether a plaintiff is a public official or public figure is a “question of

law for the Court to decide.”126 A person who holds a governmental office is a public

official.127 Those who have accepted a governmental office “are deemed to have

accepted the risk of closer public scrutiny.”128 Governor Newsom, as a public

official, must allege actual malice on behalf of FNN in the publication of defamatory

speech.

A plaintiff can demonstrate actual malice through circumstantial evidence.129

Circumstantial evidence may include:

(i) obvious reason to doubt the veracity of the informant; (ii) a basis
wholly on an unverified, anonymous source; (iii) such an inherent
improbability ‘that only a reckless man would have put them in
circulation;’ (iv) financial motive; (v) a departure from journalistic
standards; (vi) a preconceived false narrative; and (vii) a refusal to
retract the statement and continuing to repeat statements that have been
proven false.130

125
Mosesian v. McClatchy Newspapers, 233 Cal.App.3d 1685, 1694 (1991).
126
Id.
127
Id. at 1696.
128
Id.
129
US Dominion, Inc. v. Fox News Network, LLC, 293 A.3d 1002, 1043 (Del. Super.
Ct. 2023).
130
Id. (internal citations omitted).
25
No single factor is conclusive, and a plaintiff may prove actual malice through an

accumulation of factors.

1. It is reasonably conceivable that FNN knew the statements were false
at the time of making them.

FNN contends that the “‘gist’ or ‘sting’ of the suggestion that Newsom lied

was substantially true,”131 because “[t]he word ‘lie’ certainly encompasses

Newsom’s misleading tweet categorically denying he had a call with the

President.”132 “Substantial truth,” FNN asserts, “turns on what Newsom actually

said, not what he wishes he had said.”133 Governor Newsom responds that “the

central—indeed, the only—dispute between Newsom and Trump was when the two

had last spoken.”134 According to Governor Newsom, this issue was so important

that “reporters asked Trump when he has last spoken to Newsom.”135 Governor

Newsom’s comment that he had no call with President Trump “[a] day ago” was not

a lie as “[t]he timing of any call was not minor. It was the question.”136

131
Def. Mot. at 13.
132
Id. at 13-14.
133
Id. at 14.
134
Pl. Resp. at 12.
135
Id.
136
Id.
26
Generally, “a defamation claim does not require a plaintiff to plead or prove

falsity or malice.”137 But public officials are considered “[persons] of fortitude, able

to thrive in a hardy climate.”138 For this reason, public officials must prove “that the

statement was made with ‘actual malice’—that is, with knowledge that it was false

or with reckless disregard of whether it was false or not.”139

Governor Newsom offers Dickinson v. Cosby140 as a framework for assessing

the falsity of FNN’s statements. There, the plaintiff publicly accused Bill Cosby of

rape.141 Cosby’s attorneys declared the “story accusing Bill Cosby of rape is a lie”

and publicly branded Dickinson as a liar.142 Dickinson sued Cosby for

defamation.143 Cosby argued that the “gist or sting of the statements was not that

Dickinson lied about the rape allegations, but simply that she was a liar,” which

Cosby argued was substantially true.144 The Court disagreed and found Cosby’s

repeated characterization of Dickinson’s rape allegation as a fabrication was not a

137
ZL Technologies, 220 Cal.Rptr.3d at 595 (cleaned up).
138
N.Y. Times Co., 376 U.S. at 273 (1964).
139
Id. at 279-80.
140
225 Cal.Rptr.3d 430 (Cal. Ct. App. 2017).
141
Dickinson v. Cosby, 225 Cal.Rptr.3d 430, 438 (Cal. Ct. App. 2017).
142
Id. at 440.
143
Id. at 437.
144
Id. at 461.
27
“minor inaccuracy,” but rather at the heart of the statements and that the “gist” or

“sting” of the statements was the falsity of the rape allegations.145

Here, Governor Newsom contends that the gist or sting of FNN’s statements

was that Governor Newsom lied about having spoken to President Trump.146 Not

that he is a liar generally.147 At this stage of the litigation, based on the record before

it, and drawing all reasonable inferences in favor of the non-moving party –

Governor Newsom – the Court finds that the complaint sets forth facts on which it

is reasonably conceivable the plaintiff could recover.

The crux of FNN’s statements is that Governor Newsom was dishonest – lied

– about not speaking with President Trump. Roberts’ response on June 10, 2025, to

Governor Newsom’s X post states that President Trump’s call logs, and President

Trump himself, assert that the President spoke with Governor Newsom.148 Roberts’s

response on X does not indicate when this conversation between Governor Newsom

and President Trump occurred.149 Watters’ questioned why Governor Newsom

would lie about speaking with the President.150 Watters’ statement does not indicate

145
Id. at 462.
146
Pl. Resp. at 14.
147
Id.
148
Amend. Compl. ¶ 37.
149
Id.
150
Id. ¶ 47.
28
when this conversation between Governor Newsom and President Trump

occurred.151 The issue at the heart of FNN’s statements was if Governor Newsom

ever had a phone call conversation with President Trump, not when.152 And, FNN

excluded pertinent context in casting this assertion of dishonesty.

It is reasonably conceivable, under the facts set forth in the complaint, that the

“gist” or “sting” of FNN’s statements is that Governor Newsom lied about having

ever talked with President Trump and, thus, FNN’s statements may reasonably be

understood to be substantially untrue.

2. It is reasonably conceivable that Watters’ statement is not a protected
opinion.

FNN asserts that Watters’ statements are constitutionally protected opinions

based on disclosed facts.153 FNN argues that the language used by Watters indicates

his statement was an opinion because he “did not make a definitive assertion, but

instead asked questions in an openly skeptical tone.”154 Watters’ questions, FNN

contends, “Why would Newsom lie and claim that Trump never called him? Why

would he do that?” were rhetorical questions meant to invite the audience to consider

151
Id. ¶ 46.
152
See Id. ¶¶ 37, 46, 47.
153
Def. Mot. at 15.
154
Id. at 16.
29
other possibilities.155 Further, FNN argues that Jesse Watters Primetime is a “talk

show” and that audiences expect an “opinionated” host that uses “hyperbolic

language.”156 And, FNN asserts, Watters based his opinion on disclosed facts—that

Roberts had President Trump’s call logs showing a call between the President and

Governor Newsom and that Governor Newsom denied that there was a call.157

Governor Newsom argues that rephrasing statements of fact as rhetorical

questions does not immunize FNN from liability.158 “Viewers would have

understood the broadcasts as communicating as a fact that Newsom lied about the

timing of a call between himself and Trump.”159 Governor Newsom points to the

chyron beneath Watters, framed as a “Fox News Alert” stating “Gavin Lied About

Trump’s Call,” and argues that “[t]he language spoken—and displayed in the

corresponding chyron—demonstrate that FNN was presenting as fact that Newsom

was lying about not speaking to Trump.”160 Governor Newsom contends that FNN

was not basing an opinion on disclosed facts because FNN intentionally edited the

155
Id.
156
Id. at 19.
157
Id. at 18.
158
Pl. Resp. at 21.
159
Id. at 16.
160
Id. at 24.
30
clip to omit President Trump’s statement that he spoke to Governor Newsom “[a]

day ago.”161

“Use of hyperbolic, informal, crude, or ungrammatical language, satirical

tone, or vituperative, juvenile name-calling provide support for the conclusion that

offensive comments were nonactionable opinion.”162 However, stating “in my

opinion, this person is a liar,” “implies a knowledge of facts which lead to the

conclusion that [a particular person] told an untruth.”163 “To decide whether a

statement is fact or opinion, a court must put itself in the place of an average reader

and determine the natural and probable effect of the statement, considering both the

language and the context.”164

Here, the language of FNN’s statement is not contested. Watters, framed by

the chyron “Gavin Lied about Trump’s Call,” stated:

Newsom responded, and he said there wasn’t a phone call. He said
Trump never called him. Not even a voicemail, he said. But John
Roberts got Trump’s call logs, and it shows Trump called him late
Friday night and they talked for 16 minutes. Why would Newsom lie
and claim Trump never called him? Why would he do that?165

161
Id. at 23.
162
ZL Technologies, 220 Cal.Rptr.3d at 589 (cleaned up).
163
Milkovich v. Lorain Journal Co., 497 U.S. 1, 18 (1990).
164
Summit Bank v. Rogers, 142 Cal.Rptr.3d 40, 62 (Cal. Ct. App. 2012) (cleaned up).
165
Amend. Compl. ¶¶ 47, 48.
31
On the record presently established, this statement implies knowledge of facts that

could lead a person to believe Governor Newsom lied. FNN relied on President

Trump’s phone call logs yet excluded President Trump’s temporal description of the

call – “a day ago.”

The alleged facts do not support finding Watters’ rhetorical question to be a

constitutionally protected opinion. FNN broadcast the statement on Fox News

Channel.166 The statement was announced as a “Fox News Alert.”167 “[A] headline

over a news story arguably implies a factual assertion.”168 It is reasonably

conceivable that an average viewer could determine the statement to be one of fact,

not opinion.

3. A finding of actual malice is reasonably conceivable

FNN contends that Governor Newsom cannot meet the “daunting

requirements” of pleading actual malice.169 FNN alleges that the conclusory

allegations in Governor Newsom’s complaint that FNN “maliciously lied,” acted

“with actual malice” or “knew the falsity” of its statements, do not suffice to prove

166
Id. ¶ 48.
167
Id.
168
Moyer v. Amador Valley J. Union High School Dist., 225 Cal.App.3d 720, 726
(Cal. Ct. App. 1990).
169
Def. Mot. at 20.
32
actual malice.170 Governor Newsom responds that actual malice may be reasonably

inferred from the alleged facts in the complaint.

Governor Newsom alleges that FNN “deliberately presented a false picture”

of the June 6/7 phone call “to fulfill their preconceived narrative”171 and that “Fox

advanced this falsity about Governor Newsom out of a desire to harm him

politically.”172 He contends that FNN harbors ill-will towards him and engages in a

“pattern of employing preconceived false narratives to attack Governor Newsom.”173

To support this claim, Governor Newsom cites to a segment aired on Jesse Watters

Primetime, on June 20, 2025, in which Watters states Governor Newsom attended

“a swanky wine tasting party as riots engulfed Los Angeles and mobs vandalized

buildings.”174 While Governor Newsom asserts the June 20 comments about his

attending a “swanky wine tasting party” are false, the Court understands their

inclusion in the complaint to support his allegation of actual malice. This

“misrepresentation,” Governor Newsom argues, represents “Fox’s perverse internal

170
Id. at 21, 24.
171
Amend. Compl. ¶¶ 71, 72.
172
Id. ¶ 80.
173
Id. ¶ 85.
174
Id. ¶ 86.
33
culture and slavish partisan mission . . . to purposely avoid the truth in service of a

preconceived narrative.”175

The Amended Complaint alleges facts which, when viewed in a light most

favorable to Governor Newsom, evidence FNN published false information about

Governor Newsom with knowledge of the statement’s falsity or with a reckless

disregard for whether or not it was true. 176 Thus, under the standard applicable here,

the facts are reasonably susceptible to a finding of actual malice.

FNN also maintains that Governor Newsom failed to state a claim for

defamation based on Roberts statements177 and the wine tasting commentary.178 To

be sure, Governor Newsom’s lawsuit is against FNN for its alleged

misrepresentation of Governor Newsom’s veracity in his description of his

communication with President Trump.179 The Court understands these additional

allegations to relate to Governor Newsom’s assertion of actual malice. At this stage,

the Court declines to dissect the complaint in the manner proposed by FNN. To the

extent evidentiary objections are asserted in advance of trial, the Court will address

them at that time.

175
Id. ¶ 84.
176
See US Dominion, Inc., 2021 WL 5984265, at *28.
177
Def. Mot. at 31.
178
Id. at 33.
179
See Amend. Compl.
34
4. California Civil Code § 48a does not bar Governor Newsom’s claim.

FNN contends that Governor Newsom sent a “belated” request for correction

on June 27, 2025, the same day FNN was served with this lawsuit.180 That request,

FNN contends, does not satisfy California Civil Code § 48a, because it does not

allow FNN time to “make a correction to avoid litigation.”181 And, FNN argues,

they did issue a correction as required under § 48a.182 “Given that correction,

Newsom does not and cannot plead a ‘failure to correct’ under § 48a(b)”183 and his

complaint must fail.184

Governor Newsom responds that Ҥ 48a does not impose a requirement that a

plaintiff have served the retraction demand on a defendant before filing suit,” and

instead, provides that “a plaintiff must serve a demand ‘within 20 days after

knowledge of the publication or broadcast of the statements claimed to be

libelous.’”185 Further, Governor Newsom argues that for a retraction to be legally

sufficient and effective, “it must be full and complete and cannot be evasive or

180
Def. Mot. at 28.
181
Id.
182
Id.
183
Id. at 29.
184
Id. at 30.
185
Pl. Resp. at 35.
35
equivocal, not partial or hesitant, and it cannot contain any insinuations.”186

“Watters’s remarks,” according to Governor Newsom, “were evasive, equivocal,

partial, hesitant, and full of insinuations.”187

Under California Civil Code § 48a, in any action for defamation, the plaintiff

“shall only recover special damages unless a correction is demanded and is not

published or broadcast” and the “correction is demanded within 20 days.”188 For a

retraction or correction “to be legally sufficient and effective, it must be full and

complete and cannot be evasive or equivocal, not partial or hesitant, and it cannot

contain any insinuations. It must be an honest endeavor to repair all the wrong

caused by any defamatory statements or insinuations.”189 “[F]or a defendant to rely

upon a retraction in mitigation of damages, ‘it should appear that it was fully, fairly,

and promptly made, and is such as an impartial person would consider reasonable

and satisfactory under the circumstances of the case.’”190

Here, Governor Newsom timely served a retraction request on FNN. The

alleged defamatory statement was made on June 10, 2025, and under § 48a,

186
Id. at 36.
187
Id.
188
CAL. CIV. C. § 48a(a)-(b).
189
Weller v. American Broadcasting Companies, Inc., 232 Cal.App.3d 991, 1010
(Cal. Ct. App. 1991).
190
Id. at 1011.
36
Governor Newsom needed to serve a retraction demand within 20 days of the

defamatory statement.191 He did not need to allow FNN time to fix the error to avoid

litigation.192 Governor Newsom demanded retraction of the June 10 comment on

June 27, seventeen days after the statement was made.193 In response, Watters

published the previously deleted statement of President Trump’s that he spoke with

Governor Newsom “[a] day ago.”194 Watters commented that he understood

Governor Newsom’s X post to mean that “there was no call. Ever. Period,” not that

there was no call or voicemail a day ago.195 Watters explained that he did not find

President Trump’s temporal qualification to seem relevant.196 FNN contends Watters

July 17, 2025, statement is a full and complete retraction. But, whether Watters’

statement suffices as a retraction under California law is a matter to be determined

by the factfinder.197 Under the facts alleged, it is reasonably conceivable that a

factfinder could find Watters’ assertion that Governor Newsom was confusing,

unclear, and sloppy, to be less than the “full and complete” retraction California law

191
CAL. CIV. C. § 48a(b).
192
See id. (The statute does not prohibit a contemporaneous suit and demand).
193
Amend. Compl. ¶ 74, Def. Mot., Ex. E.
194
Amend. Compl. ¶ 75.
195
Id. ¶ 75.
196
Id. ¶ 75.
197
Twin Coast Newspapers, Inc. v. Superior Court, 208 Cal. App. 3d 656, 661-2
(1989).
37
demands. The July 17 report could equally be considered evasive, equivocal, partial,

hesitant, and replete with insinuations. Neither the timing of Governor Newsom’s

demand, nor the substance of Watters’ subsequent statement, warrant dismissal at

this time.

5. Delaware Superior Court Civil Rule 9(g) does not bar Governor
Newsom’s claim.

FNN argues that “Delaware’s Rule 9(g) also requires ‘specifically stat[ing]

the amount of special damages’”198 and, because Governor Newsom did provide

such a statement, his complaint is barred from proceeding under Delaware Superior

Court Civil Rule 9(g).199 Governor Newsom argues that he “was not required to

plead those damages because they are presumed.”200

Under Superior Court Civil Rule 9(g), “[a] pleading . . . which prays for

unliquidated money damages, shall demand damages generally without specifying

the amount, except when items of special damage are claimed, they shall be

specifically stated.”201 As a general rule, “oral defamation is not actionable without

special damages.”202 However, in cases involving slander per se, the claim may be

198
Def. Mot. at 30.
199
Id.
200
Pl. Resp. at 37.
201
Del. Super. Ct. Civ. R. 9(g).
202
Spence, 396 A.2d at 970.
38
established without proof of special damages due to the difficulty in attributing

specific financial loss to the statement.203 “In broad terms, these are statements

which: (1) malign one in a trade, business or profession, (2) impute a crime, (3)

imply that one has a loathsome disease, or (4) impute unchastity to a woman.”204 To

speak critically of someone in a personal capacity does not necessarily constitute

professional malignment.205 But, a broadly circulated personal critique that greatly

impacts the plaintiffs good name and reputation and thereby affects his professional

standing may warrant special damages.206 “[U]nder Delaware law, injury to

reputation is permitted without proof of special damages.”207

Here, FNN speaks about Governor Newsom’s professional career in a critical

manner. As a public official, Governor Newsom has accepted a risk of closer public

scrutiny.208 FNN assails Governor Newsom’s veracity – his personal character.

When a personal critique greatly impacts a plaintiff’s professional standing and

reputation, a plaintiff may proceed without pleading special damages.209 Governor

203
Id.
204
Id.
205
McMahon v. McMahon, 2024 WL 1905462, at *4 (Del. Super. Ct. Apr. 29, 2024).
206
See Stitt v. Lyon, 103 A.2d 332 (Del. Super. Ct. 1954).
207
Gannett Co., Inc. v. Kanga, 750 A.2d 1174, 1184 (Del. 2000).
208
Mosesian, 233 Cal.App.3d at 1696.
209
Gannett Co., Inc., 750 A.2d at 1184.
39
Newsom, alleges that FNN’s statement that he was a liar resulted in reputational

injury,210 and that FNN intended to harm his career politically.211 The complaint

alleges facts reasonably susceptible to this conclusion thus permitting Governor

Newsom to move forward without an allegation of special damages.

III. ATTORNEYS’ FEES

FNN contends that they are entitled to attorneys’ fees under California’s anti-

SLAPP Statute based on Governor Newsom’s withdrawal of his California Unfair

Competition Law claim.212 FNN argues that “Newsom’s decision to abandon his

meritless [Unfair Competition Law] claim makes [it] a ‘prevailing defendant’ under

California’s anti-SLAPP law and entitles [FNN] to a mandatory award of attorneys’

fees it incurred addressing the [Unfair Competition Law] claim.”213 Governor

Newsom, of course, opposes this application.214

California’s anti-SLAPP statute serves “to prevent and deter ‘lawsuits brought

primarily to chill the valid exercise of the constitutional rights of freedom of speech

and petition for the redress of grievances.’”215 “The anti-SLAPP statute provides a

210
Amend. Compl. at 26.
211
Id. ¶ 80.
212
D.I. 17 at 1.
213
Id. at 2.
214
Pl. Resp. at 38.
215
Soukup v. Law Offices of Herbert Hafif, 139 P.3d 30, 42 (Cal. 2006) (cleaned up).
40
‘procedural remedy to dispose of lawsuits that are brought to chill the valid exercise

of constitutional rights.’”216 The California Supreme Court rejected the idea of the

anti-SLAPP statute as being read as substantive law.217 FNN contends that, if the

Court finds that the California’s anti-SLAPP provision does not apply, then the Court

should address the issue of attorneys’ fees under New York’s anti-SLAPP statute.218

To be sure, Delaware procedural law controls here. Because California and New

York’s anti-SLAPP statutes provide procedural guardrails to litigation, the Court

declines to apply those statutes to the claim Governor Newsom chose to withdraw.

216
Crossroads Investors, L.P. v. Federal National Mortgage Assn., 222 Cal.Rptr.3d
1, 18 (Cal. Ct. App. 2017) (cleaned up).
217
Flatley v. Mauro, 139 P.3d 2, 18 (Cal. 2006).
218
Def. Mot. at 38.
41
CONCLUSION

The Court finds that FNN will not suffer an overwhelming hardship defending

itself in Delaware – the State it has chosen as its corporate home. And, at this stage,

under facts set forth in the amended complaint and upon reasonable inferences drawn

in favor of Governor Newsom, recovery is conceivable even when viewed through

the more discerning lens applied to allegations of defamation of a public official. A

reasonable interpretation of the facts presently before the Court support Governor

Newsom’s claim. And this Court declines to apply California or New York

procedural rules to Delaware litigation. Accordingly, FNN’s motion to dismiss

under Superior Court Civil Rule 12(b)(3) and (b)(6) and its motion for attorneys’

fees are DENIED.

IT IS SO ORDERED.

_______________ _________
Sean P. Lugg, Judge

42