Gibson v. Swingle

Filed 5/28/10 Gibson v. Swingle CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from an order of the Superior Court of Los Angeles County, Paul Gutman, Judge. Affirmed.

Jeffrey A. Agnew for Defendant and Appellant.

Richard Gibson, in pro. per., for Plaintiff and Respondent.

______________________________

Plaintiff, an attorney, filed this action alleging defendant had defamed him and invaded his privacy through Internet posts and e‑mail communications. Defendant responded with a special motion to strike, contending the action was a strategic lawsuit against public participation (SLAPP) (Code Civ. Proc.,  425.16, subd. (b)(1); all undesignated section references are to that code unless otherwise indicated).

The trial court denied the anti-SLAPP motion on the ground it was untimely. We conclude the motion was timely, but the statements made about plaintiff did not involve a public issue. ( 425.16, subds. (b)(1), (e)(3).) We affirm.

I

BACKGROUND

The allegations and facts in this case are taken from the complaint and the parties submissions on the motion to strike.

A.Complaint

On September 26, 2008, plaintiff Richard Gibson filed this action. The complaint alleged as follows.

Gibson is an attorney in good standing with the State Bar of California. For several years, the anonymous defendants (defendants) have been posting hundreds of messages about Gibson on the community discussion boards at Craigslist.org.

The posts have included Gibsons office address, e‑mail address, office telephone number, and California State Bar number. In the posts, defendants have falsely accused Gibson of breaking numerous criminal laws, owning and operating a house of prostitution, publishing pornography, harassing and stalking them, violating the California Rules of Professional Conduct, being mentally ill, threatening them with violence, owning rental property that violates housing laws, renting property to illegal immigrants, expressing bigotry and hatred toward Jews and Christians, and using illegal drugs. The posts have urged readers not to use Gibson as an attorney, threatened him with physical harm, and encouraged readers to send him computer viruses.

The messages at Craigslist.org have been posted on the politics board and the legal services board. Gibson uses the legal services board to advertise his services and obtains a significant amount of work from that source. Gibson sent e‑mails to defendants asking them to stop posting the messages. They responded by increasing the number of derogatory posts and accusing him of harassment.

Google Inc. offers a service called Blogspot, which allows any member of the public to post a blog on the Internet and to express their opinions in the blog. In September 2008, defendants created a blog using the Goggle service. The Web site address of the blog was: www.richardhilarygibson.blogspot.com. Defendants posted messages on the blog similar to the ones posted at Craigslist.org, such as Gibson has threatened to murder people, he threatened then-presidential candidate Barack Obama, he threatened to blow up someones car, he stalks people, he uses a lot of profanity, he has expressed contempt for the Bible, he makes racist remarks directed at Mexican-Americans, he is a perv, and he is a liar.

Defendants have sent e‑mails to randomly selected attorneys in Los Angeles County, accusing Gibson of crimes and misdeeds. Defendants have also sent e‑mails directly to Gibson, informing him of derogatory messages posted about him at Craigslist.org or the Google blog.

The complaint alleged causes of action for defamation and invasion of privacy. It sought injunctive relief and damages.

On October 23, 2008, Gibson filed an amendment to the complaint, naming Justin Swingle as defendant Doe No. One. Substituted service was made under section 415.20 on October 27, 2008. Copies of the summons, complaint, and amendment to the complaint were mailed to Swingle the next day. Service was deemed complete on November 7, 2008. (See  415.20, subd. (b).)

On December 9, 2008, Gibson filed another amendment to the complaint, naming the Belgravia Trust (Trust) as defendant Doe No. Two. The Trust is an inter vivos revocable trust of which Swingle is the sole settlor and trustee. Service of process on the Trust was effected on December 16, 2008, by personally serving Swingle with a copy of the second amendment to the complaint.

On January 6, 2009, Swingle filed an unverified answer and cross-complaint. The cross-complaint alleged that Gibson had deleted Swingles posts by illegally flagging them. Swingle alleged causes of action for intentional infliction of emotional distress and violation of the constitutional right to free speech.

B. Anti-SLAPP Motion

On February 13, 2009, Swingle filed an anti-SLAPP motion, admitting he had posted some of the messages described in the complaint. Nevertheless, he argued the messages were statement[s] or writing[s] made in a place open to the public or a public forum in connection with an issue of public interest. ( 425.16, subd. (e)(3).) Gibson opposed the motion, contending it was not filed within 60 days of the service of the complaint ( 425.16, subd. (f)) and did not involve statements made in connection with a public issue ( 425.16, subds. (b)(1), (e)(3)).[1]

The motion was heard on May 8, 2009, and denied. The trial court ruled that the motion was untimely. Swingle appealed.

II

DISCUSSION

We review de novo the trial courts ruling on an anti-SLAPP motion. (See Flatley v. Mauro (2006) 39 Cal.4th 299, 325.)

Swingle argues his anti-SLAPP motion was timely in light of the second amendment to the complaint, which sued him as the trustee of the Trust. He further argues that Gibsons claims are based on statements made in connection with a public issue and that Gibson is not likely to prevail on the merits of his claims.

We conclude the motion was timely but the claims are not based on statements made in connection with a public issue.

As a preliminary matter, we decide whether the anti-SLAPP motion was timely. Swingle was served with process in his individual capacity, effective November 8, 2008. He was served in his capacity as trustee of the Trust on December 16, 2008. Both times, service was made through a Doe amendment to the complaint. The anti-SLAPP motion was filed on February 13, 2009.

An anti-SLAPP motion must be filed within 60 days of the service of the complaint absent permission from the trial court. ( 425.16, subd. (f).) Although 60 days commenced to run on November 8, 2008, when Swingle was served in his individual capacity, another 60-day period began when Swingle was served the second time, on December 16, 2008, as a trustee. (See Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298, 313315; Lam v. Ngo (2001) 91 Cal.App.4th 832, 840842; see also Davis v. Marin (2000) 80 Cal.App.4th 380, 387.) The motion was filed within 60 days of December 16, 2008, and was therefore timely.

A. Protected Activity Under the Anti-SLAPP Statute

Litigation which has come to be known as SLAPP is defined by the sociologists who coined the term as civil lawsuits . . . that are aimed at preventing citizens from exercising their political rights or punishing those who have done so. . . . [] . . . []

SLAPP suits are brought to obtain an economic advantage over the defendant, not to vindicate a legally cognizable right of the plaintiff. . . . [O]ne of the common characteristics of a SLAPP suit is its lack of merit. . . . But lack of merit is not of concern to the plaintiff because the plaintiff does not expect to succeed in the lawsuit, only to tie up the defendants resources for a sufficient length of time to accomplish plaintiffs underlying objective. . . . As long as the defendant is forced to devote its time, energy and financial resources to combating the lawsuit its ability to combat the plaintiff in the political arena is substantially diminished. (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 890891, citations omitted.)

Under the anti-SLAPP statute, [a] cause of action against a person arising from any act of that person in furtherance of the persons 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. ( 425.16, subd. (b)(1), italics added.) The statute is to be broadly construed to encourage continued participation in free speech and petition activities. (Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi (2006) 141 Cal.App.4th 15, 22; see  425.16, subd. (a).)

The Legislature enacted the . . . statute to protect defendants . . . from interference with the valid exercise of their constitutional rights, particularly the right of freedom of speech and the right to petition the government for the redress of grievances. (Contemporary Services Corp. v. Staff Pro Inc. (2007) 152 Cal.App.4th 1043, 1052.)

1. Parties Burdens on the Motion

[The anti-SLAPP statute] requires the [trial] court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendants burden is to demonstrate that the act or acts of which the plaintiff complains were taken in furtherance of the [defendant]s right of petition or free speech under the United States or California Constitution in connection with a public issue, as defined in the statute. ( 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67, italics added.)

Put another way, a defendant seeking to strike a plaintiffs complaint under section 425.16 has the burden of making a prima facie showing that the plaintiffs allegations are subject to that section. . . . Only if the defendant satisfies that burden, will it then fall to the plaintiff to establish the required probability of success. . . . The defendants burden requires that it demonstrate that the plaintiffs cause of action arose from some act of the defendant that was taken in furtherance of the defendants constitutional rights of petition or free speech. (Gallimore v. State Farm Fire & Casualty Ins. Co. (2002) 102 Cal.App.4th 1388, 1397, citation omitted, italics added & omitted; accord, Club Members for an Honest Election v. Sierra Club (2008) 45 Cal.4th 309, 315316.)

2. Public Issue

The anti-SLAPP statute applies where [a] cause of action against a person aris[es] from any act of that person in furtherance of the persons right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue. ( 425.16, subd. (b)(1), italics added.)

As used in the statute, act in furtherance ofa persons right of petition or free speech under the United States or California Constitution in connection with a public issue includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (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; (4) or 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. ( 425.16, subd. (e), italics added; see Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 11171118, 1123 [discussing types of statements covered by anti-SLAPP statute].) Swingle contends that the complaint falls within the third clause of section 425.16, subdivision (e).

The anti-SLAPP statutes definitional focus is not the form of the plaintiffs cause of action but, rather, the defendants activity that gives rise to his or her asserted liability  and whether that activity constitutes protected speech or petitioning. . . . (Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1478, citation omitted, 2d italics added; accord, Navellier v. Sletten (2002) 29 Cal.4th 82, 9193.)

The definition of public interest within the meaning of the anti-SLAPP statute has been broadly construed to include not only governmental matters, but also private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a governmental entity. . . . . . . Although matters of public interest include legislative and governmental activities, they may also include activities that involve private persons and entities, especially when a large, powerful organization may impact the lives of many individuals. . . . (Kurwa v. Harrington, Foxx, Dubrow & Canter, LLP (2007) 146 Cal.App.4th 841, 846, citations omitted; accord, Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479.)

In general, [a] public issue is implicated if the subject of the statement or activity underlying the claim (1) was a person or entity in the public eye; (2) could affect large numbers of people beyond the direct participants; or (3) involved a topic of widespread, public interest. (Jewett v. Capital One Bank (2003) 113 Cal.App.4th 805, 814; accord, World Financial Group, Inc. v. HBW Ins. & Financial Services, Inc. (2009) 172 Cal.App.4th 1561, 1573; Century 21 Chamberlain & Associates v. Haberman (2009) 173 Cal.App.4th 1, 9.) [T]o satisfy the public issue/issue of public interest requirement in situations where the issue is of interest only to a limited, but definable portion of the public, such as a private group, organization, or community, the constitutionally protected activity must, at a minimum, occur in the context of an ongoing controversy, dispute or discussion, such that it warrants protection by a statute that embodies the public policy of encouraging participation in matters of public significance. (Hailstone v. Martinez (2008) 169 Cal.App.4th 728, 738; accord, World Financial Group, Inc. v. HBW Ins. & Financial Services, Inc., supra, at pp. 15721573.)

The fact that a broad and amorphous public interest can be connected to a specific dispute is not sufficient to meet the statutory requirements of the anti-SLAPP statute. . . . By focusing on societys general interest in the subject matter of the dispute instead of the specific speech or conduct upon which the complaint is based, defendants resort to the oft-rejected, so-called synecdoche theory of public issue in the anti-SLAPP statute, where [t]he part [is considered] synonymous with the greater whole. . . . In evaluating the first [step] of the anti-SLAPP statute, we must focus on the specific nature of the speech rather than the generalities that might be abstracted from it. . . . (World Financial Group, Inc. v. HBW Ins. & Financial Services, Inc., supra, 172 Cal.App.4th at p. 1570, citations omitted, italics added; accord, Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1132; Commonwealth Energy Corp. v. Investor Data Exchange, Inc. (2003) 110 Cal.App.4th 26, 34.)

Web sites accessible to the public . . . are public forums for purposes of the anti-SLAPP statute. (Nygrd, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1039, italics added; accord, Barrett v. Rosenthal (2006) 40 Cal.4th 33, 41, fn. 4.) But not every Web site post involves a public issue. (See  425.16, subd. (e)(3) [requiring that speech be made in a public forum and in connection with an issue of public interest].) [M]ere publication . . . on a Web site[] should not turn otherwise private information . . . into a matter of public interest. (Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107, 117.)

B. Swingles Anti-SLAPP Motion

In support of the anti-SLAPP motion, Swingle submitted a declaration in which he admitted having posted messages on Craigslist.org accusing Gibson of breaking laws, using illegal drugs, harassing and stalking people, frequently using profanity, being mentally ill, and threatening people with violence. Swingle admitted he created a blog through Google Inc. and posted messages on it accusing Gibson of offering a reward for the murder of someone, threatening to blow up someones car, threatening theimage of then-presidential candidate Barack Obama, using illegal drugs, stalking people, expressing contempt for the Bible, making racist remarks directed at Mexican-Americans, and being a perv. Swingle said he had sent e‑mails out regarding Mr. Gibson.

In a second declaration, filed with his reply papers, Swingle stated he had posted numerous messages on the Internet, expressing his thoughts and opinions on political issues ranging from illegal immigration to religious bigotry. Over the last several years, hundreds of his posts at Craigslist.org have been flagged and removed within seconds of their posting. At Craigslist.org, if enough users flag a post or if Craigslist.orgs staff independently determines a post to be improper, it is removed from the Web site. Swingle came to the conclusion that Gibson was flagging his posts on a wholesale basis. Swingle fought back by posting messages exposing [Gibson] as the person who routinely flagged [his] posts. Swingle concluded, [b]ased on my posts exposing [Gibson], I have now been sued for defamation, and for an injunction silencing me from fighting back against [Gibsons] campaign of flagging my posts on political issues.

On appeal, Swingle maintains that this suit, like Gibsons alleged flagging, is another attempt to silence Swingle and prevent him from engaging in political speech. Swingle argues that his political posts were statements of public interest and that posting his political writings on the Internet concerned issues of public interest.

We do not disagree with the contention that political comments posted on the Internet may involve an issue of public interest. But we cannot say this suit arises from, or is based on, Swingles political speech or any other speech of public interest. Rather, as the complaint makes clear, the claims are based on Internet posts describing Gibsons alleged character flaws and his alleged illegal or otherwise improper conduct. Whether the postings are defamatory is not before us.

The anti-SLAPP statutes definitional focus is . . . the defendants activity that gives rise to his or her asserted liability . . . . . . . (Feldman v. 1100 Park Lane Associates, supra,160 Cal.App.4th at p. 1478, citation omitted, italics added & omitted.) Here, Gibsons claims are based on defendants alleged derogatory Internet posts, not on political statements.

Accordingly, we conclude the anti-SLAPP motion was properly denied.

III

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED.

MALLANO, P. J.

We concur:

ROTHSCHILD, J.

CHANEY, J.

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[1] In a declaration attached to his opposition papers, Gibson requested, in a few sentences, that the trial court review hundreds of pages of exhibits attached to a prior motion. Those pages supposedly displayed literally thousands of . . . defamatory publications. Gibson failed to cite or refer to any specific page of the hundreds in the trial court, so we cannot say the trial court considered this evidence. Neither do we.