>Gibson v.
Fleming

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Filed 7/12/13  Gibson v. Fleming CA5

 

 

 

 

 

NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS

 

 

 

California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

 

 

 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

 
>

NEIL B. GIBSON,   Plaintiff and Respondent,                           v.   NICK V. FLEMING, JR.,   Defendant and Appellant.

F065577   (Super. Ct. No. S-1500-CV-276270)     >OPINION

 

            APPEAL from
a judgment of the Superior Court
of Kern County.  William D. Palmer, Judge.

            Law Offices
of David J. Harter, David J. Harter, for Defendant and Appellant.

            Swanson
O’Dell, Jeremy D. Swanson and Seth N. O’Dell, for Plaintiff and Respondent.

-ooOoo-

            Plaintiff
Neil B. Gibson sued defendant Nick V. Fleming, Jr., for defamation and related
causes of action after Fleming posted statements on the Internet asserting that
Gibson was involved in financial services fraud, among other things.  Fleming filed an anti-SLAPP motion (Code Civ.
Proc., § 425.16), asking the trial court to strike the complaint because
it was directed against statements on an issue of public interest and because
Gibson could not show a probability of succeeding on his claims.  The court denied the motion, finding that
Fleming did not establish that the allegedly defamatory statements concerned an
issue of public interest.  We agree.

            Fleming
attempts to show that the statements concerned an issue of public interest by
arguing that Gibson was a public figure. 
Fleming argued that Gibson was a public figure primarily because Gibson
claimed on his own websites that he
was an international philanthropist and humanitarian.  In our view, these claims do not show that he
is a public figure as that term is used in the law. 

            Fleming
also attempts to show that Gibson was a public figure by presenting evidence
that people other than Fleming had posted statements on the Internet about
him.  The other statements, however, do
not show that Gibson is a public figure. 
Finally, in his reply brief, Fleming makes for the first time an
argument that this case is similar to two cases in which statements of public
interest were found to have been made. 
One involved a warning to consumers about the allegedly dishonest
practices of a vendor, the other a report to a group of parents about a youth
counselor’s alleged molestation of a child. 
Since Fleming did not make this argument in the trial court and did not
make it on appeal until he filed his reply brief, the argument has been
forfeited. 

            We affirm
the trial court’s order. 

FACTUAL AND
PROCEDURAL HISTORIES

            Gibson
filed this action on April 6, 2012.  In his first amended complaint, Gibson
alleged that on several dates in 2011 and 2012, Fleming made, on websites
controlled by him, postings that included or implied a variety of false and
defamatory statements.  These included
that Gibson was a perpetrator of fraud involving a type of financial instrument
called an international bill of exchange (IBOE); that Gibson was wanted by law
enforcement authorities in the United Kingdom; that Gibson was a spy,
terrorist, and associate of organized crime figures; that Gibson traded in
counterfeit goods; that Gibson, who refers to himself as Lord Gibson, was a
phony lord; and that agents of Gibson threatened Fleming.  The complaint stated that all these
statements are false and that Gibson has never engaged in any illegal
activity.  The complaint also alleged
that Fleming sent an e-mail to Gibson threatening to kill Gibson and harm
Gibson’s family.  Further, Fleming used
Gibson’s name without permission in the web addresses of several websites
Fleming created.  Fleming also allegedly
stated on a website that Gibson was on vacation in Las
Vegas at a certain time; then Fleming or someone who
read Fleming’s post approached Gibson in Las Vegas
and tried to take his picture.  Finally,
the complaint stated that Gibson is an investment banker and he lost the
financial backing of four banks for a business project because the banks had
seen Fleming’s Internet postings. 

            The
complaint alleges seven causes of action: 
libel; slander; intentional infliction of emotional distress; misuse of
Gibson’s name in violation of his right of publicity; false-light invasion of
privacy; invasion of privacy by publication of private facts; and interference
with prospective business advantage. 
Gibson prayed for an injunction, a declaratory judgment, and damages of
$2 million. 

            Fleming
responded to the complaint by filing a special notice to strike pursuant to the
anti-SLAPP statute, Code of Civil Procedure section 425.16.href="#_ftn1" name="_ftnref1" title="">[1]  Fleming argued that the motion should be
granted because Gibson’s claims arose from alleged statements about matters of
public interest and because Gibson could not establish a probability that he
would prevail. 

            In his
memorandum of points and authorities in support of the motion, Fleming argued
that his allegedly defamatory statements concerned a matter of public interest
because he made those statements in a public forum (the Internet) and they were
statements about a public figure.  Fleming
contended that Gibson was a public figure because of Gibson’s own websites in
which he was described as an international leader in humanitarian and business
activities.  As exhibits to a declaration
in support of the motion, Fleming submitted pages printed from 11 websites that
promoted Gibson and incorporated Gibson’s name into their web addresses.  One site stated:

“Who is Lord Neil B. Gibson?  [¶] 
Oftentimes, successful public figures become skewed by the opinions of
others.  The truth is, beyond his great
work with international governments, within the financial sector, and in the
humanitarian realm, Lord Neil Gibson is, simply put, a good man who is striving
to make a positive difference in this world.” 


            The same
site describes Gibson as a “well-traveled â€¦ global ambassador” and discusses
humanitarian projects in which he has been involved.  He once “served as Ambassador at Large” in
west Africa.  He was involved with a
project with Firestone Tire Company in which shipping containers, after
delivering rubber to the United States
from a plantation in Liberia,
were sent back filled with books, clothing, and other supplies.  In Iraq,
Gibson was “integral in efforts to rebuild the infrastructure,” including
hospitals.  He “sent much funding and
financial support” to “the still-struggling New Orleans.”  In Lesotho,
a small nation surrounded by the Republic
of South Africa, he “partnered with
both the royal family and major corporate investors to rebuild this tiny
nation’s economy.”  In South
Africa itself, Gibson was “working
tirelessly to bring boxing and other entertainment events to this country,
which will provide much-needed stimulus to the local economy!”  In Belize,
“our ambassador to the world is working with the local government to see a
major new road built, and also to bring a film studio to the area!” 

            Other sites
made similar claims.  One stated that
“there are a handful of people who can make a legitimate claim to having truly
changed the world,” and that “[o]ne of the most important, but arguably
least-known members of this elite group of big-picture world changers is a
fellow by the name of Lord Neil Gibson.”href="#_ftn2" name="_ftnref2" title="">[2] 

            In his
opposition to the anti-SLAPP motion, Gibson acknowledged that he maintained
self-promotional websites, but contended that these did not make him a public
figure.  He argued that all the websites
were related to his business activities and that his self-promotion did not
convert him into a public figure, even though it refers to him using the term
“public figure.”  Some of the websites
were Gibson’s “attempts to combat [Fleming’s] slander and save [Gibson’s]
livelihood.”  Gibson went on to argue
that there was a probability he would succeed on the merits of his claims, so
the motion should be denied even if he were a public figure or the subject of
the allegedly defamatory statements was a matter of public interest. 

            The trial
court issued a written ruling:

“Defendant’s motion to dismiss the first amended
complaint relying on [Code of Civil Procedure] § 425.16, is denied.

“The court concludes that the Defendant fails in [his]
attempt to establish that his activity/statements in regard to plaintiff are
protected.  Defendant claims that
plaintiff is a public figure and thus statements in a public forum are
protected.  Defendant points to
plaintiff’s statements about himself as establishing the public figure
status.  At first ‘blush’ this argument
is appealing, however, on further analysis, the reasoning must fail.  A self-proclaimed public figure, without
more, certainly cannot be sufficient to make the individual an all-purpose
public figure.  Therefore, at best,
Plaintiff is a limited purpose public figure. 
Thus, speech in regard to plaintiff must encompass a public issue, and
the burden of establishing that there exists a public issue rests with
Defendant.  Defendant has not met his
burden on that issue, and thus has not met his burden on the first prong of the
two pronged process.” 

 

 

DISCUSSION

            As the California
Supreme Court has explained, a “SLAPP is a civil lawsuit that is aimed at
preventing citizens from exercising their political rights or punishing those
who have done so.”  (Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12,
21.)  “In 1992, out of concern over a
‘disturbing increase’ in these types of lawsuits, the Legislature
enacted â€¦ the anti-SLAPP statute [i.e., Code Civ. Proc.,
§ 425.16].  The statute authorized
the filing of a special motion to strike to expedite the early dismissal of
these unmeritorious claims.”  (>Ibid.) 


            “A special
motion to strike involves a two-step process. 
First, the defendant must make a prima facie showing that the
plaintiff’s ‘cause of action â€¦ aris[es] from’ an act by the defendant ‘in
furtherance of the [defendant’s] right of petition or free speech â€¦ in
connection with a public issue.’”  (>Simpson Strong-Tie Co., Inc. v. Gore, supra,
49 Cal.4th at p. 21.)  If the
defendant meets this threshold, the court considers the second step of the
inquiry, i.e., whether the plaintiff has established a probability that the
plaintiff will prevail on the claim.  (>Ibid.) 


            Code of
Civil Procedure section 425.16, subdivision (e), defines an “‘act in
furtherance of a person’s right of petition or free speech under the United
States or California
Constitution .…’”  The portions of
the definition relevant to this case are “(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).) 
We review an order granting or denying an anti-SLAPP motion de
novo.  (Smith v. Adventist Health System/West (2010) 190 Cal.App.4th 40,
52.) 

            To prevail
under either subdivision (e)(3) or subdivision (e)(4) of Code of
Civil Procedure section 425.16, Fleming was required to show that his
alleged statements were “in connection with an issue of public interest.”  One way Fleming could have showed this was by
means of evidence that Gibson was a public figure.  (Rivero
v. American Federation of State, County and Municipal Employees, AFL-CIO
(2003) 105 Cal.App.4th 913, 924 (Rivero)
[statements concerning “a person or entity in the public eye” can satisfy
issue-of-public-interest requirement].)

“There are two types of public figures:  ‘The first is the “all purpose” public figure
who has “achieve[d] such pervasive fame or notoriety that he becomes a public
figure for all purposes and in all contexts.” 
The second category is that of the “limited purpose” or “vortex” public
figure, an individual who “voluntarily injects himself or is drawn into a
particular public controversy and thereby becomes a public figure for a limited
range of issues.”’  [Citation.]  Thus, one who undertakes a voluntary act
through which he seeks to influence the resolution of the public issues
involved is a public figure. 
[Citation.]”  (>Sipple v. Foundation for Nat. Progress
(1999) 71 Cal.App.4th 226, 247.)

            Another way
in which Fleming could have showed that his allegedly defamatory statements
concerned an issue of public interest would be by means of evidence that those
statements related to “conduct that could directly affect a large number of
people beyond the direct participants” or a “topic of widespread, public
interest.”  (Rivero, supra, 105 Cal.App.4th at p. 924.)

            Fleming
argues that Gibson admits he is “an internationally known public figure”
because he acknowledges his websites touting his involvement in various
projects around the world, describing him as an important humanitarian and
financier, and using the term “public figure” in reference to him.  Fleming’s motion, however, could not properly
be granted based on these facts.href="#_ftn3"
name="_ftnref3" title="">[3] 

            The facts
do not show that Gibson is a public figure for all purposes.  A person is a public figure for all purposes
if he has achieved pervasive fame or
notoriety.  Gibson’s self-promotional
websites, claiming that he has been involved in a handful of obscure projects
and opining that he is important, do not show that he has achieved pervasive
fame or notoriety. 

            The facts
also do not show that Gibson is a public figure for any limited purposes
relevant to this case.  Gibson’s websites
do not indicate that he has thrust himself into any public controversy on the
subjects of whether he is a fraudfeasor, spy, terrorist, or phony lord.  They show only that Gibson wishes to promote
himself by claiming he has engaged in various good works. 

            Fleming
argues that, even if Gibson’s websites and Gibson’s description of himself as a
public figure do not conclusively prove that Fleming’s allegedly defamatory
statements relate to an issue of public interest, they still are >some evidence of this, and no more is
required.  Fleming maintains that, “[i]n
making out a prima facie case under
the first prong [of the anti-SLAPP analysis], any admissible evidence
is sufficient.”  He cites no applicable
authority in support of this proposition, however.  He cites Soukup
v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291, but there the
Supreme Court was discussing the standard for the second prong of the anti-SLAPP analysis, and in any event it did
not say that “any” evidence was sufficient to satisfy that prong.  Instead, the plaintiff must show that his or
her claim has “‘minimal merit.’”  (>Ibid.). 
Fleming also cites Carson v.
Facilities Development Co. (1984) 36 Cal.3d 830, 838-839, in which the
Supreme Court stated the standard for deciding a motion for nonsuit.  As with Fleming’s other citation, this one is
not relevant to the analysis at issue, and in any case does not say that “any”
evidence is enough.  (To survive a motion
for nonsuit, a plaintiff’s evidence must be sufficient to support a jury
verdict if it is assumed to be true; conflicting evidence is disregarded; and
all presumptions, inferences, and doubts are resolved in favor of the plaintiff
(ibid.).) 

            While we do
not believe the first prong of the anti-SLAPP analysis is satisfied by merely
“any” evidence that the plaintiff is a public figure, we are not aware of
authority stating exactly what the evidentiary standard applicable to this
showing is.  It is unnecessary for us to
determine what the standard is, however, because we are confident that
Fleming’s showing fails under any standard. 
Gibson’s websites do not support the view that Gibson is a public
figure.  The puffery on those websites
provides no support for the notion that Gibson has achieved pervasive fame or
notoriety.  It also provides no support
for the contention that Gibson is a public figure for the limited purposes
relevant to this lawsuit, since they do not indicate that Gibson has thrust
himself into any public controversy. 

            Fleming
next argues that his allegedly defamatory statements related to an issue of
public interest because there were other websites, to which Fleming’s site
provided links, or from which it republished content, that discussed
Gibson.  He says, “As [Gibson] admits,
[Fleming] has allegedly linked >other people’s articles about ‘Lord’
Gibson to [Fleming’s] websites.… 
Clearly, other people are writing about Lord Gibson and started doing so
before [Fleming] took any interest.” 
Fleming also says Gibson’s websites must exist in part to combat
negative publicity, indicating that public debate about him is ongoing. 

            Fleming
fails to support these contentions. 
Fleming cites Gibson’s declaration, which in turn refers to a
third-party article republished on one of Fleming’s sites.  A reference to Gibson appears in
approximately the 25th paragraph of this long article, which originally
appeared on a website called “Unwanted Publicity Intelligence.”  The paragraph states that Gibson was
“believed to be” an “international bank paper trading fraudster,” but in
reality was a government agent “feigning to be a ‘trader’ brokering what
actually turned out to be a sting operation .…”  This reference does not show that Gibson has
achieved pervasive fame or notoriety, or that any public controversy exists
into which Gibson has inserted himself. 
Fleming does not identify anything else in the record as having been
written about Gibson by “other people.”

            In the
reply brief he submitted to this court, Fleming makes an additional argument
for the first time.  He says his
allegedly defamatory statements are comparable to the warnings of a consumer
advocate to the public about an allegedly unethical vendor, or warnings about a
possible criminal to a class of potential victims.  He cites Wilbanks
v. Wolk (2004) 121 Cal.App.4th 883 (Wilbanks)
and Terry v. Davis Community Church
(2005) 131 Cal.App.4th 1534 (Terry). 

            In >Wilbanks, the defendant was an author of
several books about viatical settlements who also maintained a website on the
subject.href="#_ftn4" name="_ftnref4" title="">[4]  The plaintiffs were viatical settlements
brokers.  (Wilbanks, supra, 121 Cal.App.4th at p. 889.)  The defendant’s website advised readers to be
careful when dealing with the plaintiffs, as the plaintiffs were incompetent
and unethical and were under investigation by the state department of
insurance.  (Id. at p. 890.)  The
plaintiffs sued for defamation and the defendant filed an anti-SLAPP
motion.  (Ibid.)  The Court of Appeal
held that the defendant’s allegedly defamatory statements were made in
connection with an issue of public interest. 
Even though the plaintiffs “are not in the public eye, their business
practices do not affect a large number of people and their business practices
are not, in and of themselves, a topic of widespread public interest,” still,
“[c]onsumer information â€¦ at least when it affects a large number of
persons â€¦ generally is viewed as information concerning a matter of public
interest.”  (Id. at p. 898.)  The
viatical settlement industry involved large numbers of people both as buyers
and sellers and the defendant was a provider of information about it to
consumers.  Her warning not to use the
plaintiffs’ services was provided in a context of information provided to
consumers to aid them in choosing among brokers.  This meant her allegedly defamatory
statements concerned a matter of public interest.  (Id.
at pp. 899-900.)

            In >Davis, the defendants were a church and
its leaders, and the plaintiffs were employees of the church who worked in its
youth program.  The defendants
investigated allegations of an inappropriate, possibly sexual, relationship
between the plaintiffs and a teenage participant in the youth program.  The church released the report of its
investigation to about 100 parents of the other teenagers in the program.  The report detailed a series of inappropriate
e-mail messages between the girl and the plaintiffs, among other things.  (Terry,
supra, 131 Cal.App.4th at pp. 1539-1540, 1543.)  The plaintiffs sued the defendants for
defamation and the defendants filed an anti-SLAPP motion.  (Id.
at pp. 1538, 1539-1540.)  The Court
of Appeal held that the allegedly defamatory statements in the report concerned
an issue of public interest “because they involved the societal interest in
protecting a substantial number of children from predators” and the matter was
referred to the police for a criminal investigation.  (Id.
at p. 1547.)  The court also found
it significant that the “plaintiffs’ actions gave rise to an ongoing
discussion” within the church and among the parents “about protection of
children.”  (Id. at p. 1550.) 

            Fleming’s
argument based on these cases comes too late. 
In his briefs and oral argument in the trial court, and in his opening
brief in this court, he never argued that he was a consumer advocate, or was
similar to a reporter to parents of suspicious activities that placed their
children at risk of molestation.  In
fact, even though Gibson argued in his opposition brief in the trial court that
the creation of fraudulent international bills of exchange would not, by
itself, be a matter of public interest, Fleming did not take the opportunity to
contend that it would be, and that he therefore should prevail on the point
regardless of whether or not Gibson was a public figure.  Instead, Fleming stuck to his argument that
Gibson was either a public figure for all purposes or a public figure for a
limited purpose.  The view that Fleming’s
postings were about an issue of public interest because they warned the
investing public about a fraudulent financial product—regardless of Gibson’s
status as a public figure—appears in Fleming’s submissions for the first time
on appeal, and then only in his reply brief. 


            The
argument therefore is forfeited. 
“Obvious reasons of fairness militate against consideration of an issue
raised initially in the reply brief of an appellant.”  (Varjabedian
v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11.)  “It is fundamental that a reviewing court
will not consider issues not raised in the trial court.”  (Lemelle
v. Superior Court (1978) 77 Cal.App.3d 148, 159.)  “An argument or theory will generally not be
considered if it is raised for the first time on appeal.”  (American
Continental Ins. Co. v. C & Z Timber Co. (1987) 195 Cal.App.3d
1271, 1281.)  Although we have discretion
in exceptional cases to consider a forfeited issue (In re Sheena K. (2007) 40
Cal.4th 875, 887, fn. 7), we see no reason to do so in this case. 

            >Request for judicial notice and evidentiary
objections

            Fleming
filed an amended request for judicial notice on February 21, 2013.  He asks us to take notice of a copy of a
complaint filed against him by Gibson in Ventura County Superior Court on
March 28, 2012, and a printout of docket information from that case.  The complaint alleges facts and causes of
action that appear to be essentially the same as those alleged in this
case.  The case in Ventura County appears
to have progressed far, with an anti-SLAPP motion having been filed and denied
and a jury trial calendared.  On
December 28, 2012, Gibson filed objections to evidence Fleming submitted
to the trial court in support of his anti-SLAPP motion, and to the materials of
which Fleming requests judicial notice. 

            The filing of a possibly duplicative
action in another county has no bearing on our analysis or disposition of this
appeal.  Fleming’s only argument about
the other case is that its existence supports his argument that this case is
frivolous and therefore Gibson cannot make the showing of likely success
required to satisfy the second prong of the anti-SLAPP analysis.  Since we hold that the trial court correctly
found Fleming had failed to satisfy the first prong, we do not address the
question of the second prong.  The
question of what, if anything, should be done about the existence of the other
action is a matter for the trial court. 
Fleming’s request for judicial notice therefore is denied as moot. 

            We would affirm the judgment with or
without the evidence to which Gibson objects. 
His evidentiary objections therefore are overruled on the ground that
they are moot.

DISPOSITION

            The trial
court’s order denying Fleming’s anti-SLAPP motion is affirmed.  Costs on appeal are awarded to Gibson. 

            Fleming’s
amended request for judicial notice, filed on February 21, 2013, is
denied.  Gibson’s evidentiary objections,
filed on December 28, 2012, are overruled. 


 

                                                                                                            _____________________

Wiseman, Acting P.J.

 

WE CONCUR:

 

 

_____________________

  Levy, J.

 

 

_____________________

  Peña, J.