Backlund v. Stone
Filed 9/4/12 Backlund v. Stone CA2/2
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
TWO
ALYSSA BACKLUND,
Plaintiff, Cross-defendant and
Appellant,
v.
CHRISTOPHER STONE,
Defendant, Cross-complainant and
Respondent.
B235173
(Los Angeles
County
Super. Ct.
No. BC449910)
APPEAL from
a judgment of the Superior Court
of
County.
Abraham Khan, Judge.
Reversed and remanded.
Law Offices
of F. Edie Mermelstein, F. Edie Mermelstein for Plaintiff, Cross-defendant and
Appellant.
Miller
Barondess, Erik Syverson, Vinay Kohli for Defendant, Cross-complainant and
Respondent.
___________________________________________________
>
An aspiring
lawyer in his 30’s named Christopher Stone operated a website for teenagers on
which he posted lewd photographs and other scandalous and salacious
material. Stone presented himself in the
mainstream media as an expert on the topic of “sextortion,” a form of blackmail
characterized by threats to humiliate a person by posting nude photographs on
the Internet. In February 2010, Stone
tweeted a threat to “spam” a seminude photograph of a teenage girl; she was
subsequently interviewed by an investigative reporter for an article about
Stone’s threat to publicly humiliate her.
Stone has now sued the girl for defamation. Following de novo review, we direct the trial
court to strike Stone’s pleading as a Strategic Lawsuit Against Public
Participation (SLAPP). (Code Civ. Proc.,
§ 425.16.)
title="">[1]
FACTS
Backlund’s Complaint
Alyssa
Backlund filed suit against Christopher Stone and Stone’s website
“StickyDrama.com” in November 2010. In
November 2009, Stone posted a lewd image of a minor female, with commentary
that the image “appears to depict Alyssa Marie Robertson masturbating next to
an infant. Such an act, in addition to
being morally repugnant, probably violates several statutes pertaining to
exposing children to obscenity.” Stone
published plaintiff’s personal contact information with the image, which was
viewed by thousands of people. Viewers
posted comments of outrage and disgust, referred to plaintiff as a “whore,” and
contacted plaintiff directly via the link provided by Stone. Plaintiff is not the person depicted in the
lewd image.
Stone’s publication of an image
falsely purporting to depict her in a lewd act exposed plaintiff to hatred,
contempt, ridicule and disgrace.
Backlund asserts causes of action for defamation and false light. Stone admits
that he posted an image of a masturbating girl on StickyDrama, with plaintiff’s
contact information.
In February 2010, Stone obtained a
topless photograph of plaintiff and sent her a publicly viewable “tweet”
stating, “Message him again, and your floppy titties are spammed all over the
place. Last warning.”
were accessible to anyone on the Internet.
Plaintiff did not consent to disclose the photo, and found the threat of
public humiliation highly offensive.
Plaintiff asserts a cause of action for public disclosure of private
facts based on Stone’s threat to spam the compromising photo of her. Stone admits
that he threatened to publicly expose the indecent photo of Backlund unless she
stopped contacting his houseguest Tammen.
Backlund’s
complaint asserts that Stone filed a small claims action for defamation against
her, but never served it. Stone urged
his website followers to contact a television company to ask that he appear on
the Judge Judy show, so that Stone
could participate in a segment involving his small claims case against
Backlund. Backlund alleges that Stone
filed the small claims action for the purpose of harassing her.
Stone moved
to strike Backlund’s complaint as a SLAPP.
He argued that his publication of Backlund’s name, residential address,
and a map to her home (in connection with the publication of the lewd
photograph) was not a public disclosure of private facts. At the same time, Stone conceded that a
search of public records does not show plaintiff’s residential address. Stone believed the lewd photograph depicted
Backlund, so he included plaintiff’s name and contact information in his
posting. Stone subsequently realized
that he was mistaken: the photograph
actually depicts an underage girl in Ohio, not plaintiff. He removed plaintiff’s personal contact link
from the photograph, and offered to post on StickyDrama the heading, “Alyssa
Marie Buckland [sic] is Not the Most
Vile Camwhore Alive.”
The trial court denied defendant’s
motion to strike Backlund’s complaint.
It found that Stone’s Internet posting of child pornography is not
protected free speech: section 425.16
“does not apply to indisputably illegal communications that are inherently
criminal.” Posting a link to plaintiff’s
personal webpage with comments attributing the wrongful child obscenity to
plaintiff also does not implicate the anti-SLAPP statute. Stone did not appeal from the trial court’s
denial of his anti-SLAPP motion.
Stone’s Cross-Complaint
After
defendant’s anti-SLAPP motion was denied, he filed a cross-complaint against
Backlund for defamation and intentional infliction of emotional distress. Despite being a purveyor of child pornography
(by posting on the Internet images of an underage girl masturbating next to an
infant), Stone paints himself as a noble crusader who protects “naïve and
unsuspecting [Internet] users [who] are easy prey to sex offenders.” Stone trumpets that he “gained a reputation
among mainstream media,” leading to features about him in the New York Times,
CNN, and Fox News about “sextortion”—the use of compromising nude photographs
to blackmail the people in the photo.
Stone
socializes with “Internet celebrities and online entertainers” who have “cult
status” on StickyDrama and like-minded websites. Backlund was a fan of StickyDrama and wanted
to join Stone’s “milieu of ‘stars.’”
After Backlund sent repeated messages to one of Stone’s houseguests,
Parker Tammen, Stone admits sending Backlund a threatening “tweet” in February
2010, “telling her that an indecent picture she sent to Mr. Tammen would be
exposed if she contacted Mr. Tammen again.”
Stone claims that his threat is not “sextortion” because he did not
demand money, property, or additional nude photos from Backlund. At the time, Stone was 31 years old and
Backlund was 19.
After Stone
publicly threatened Backlund, she was interviewed by online journalist Adrian
Chen for an article that appeared on Gawker.com in July 2010. The article initially stated that Stone
committed “sextortion” by threatening to expose a seminude photo of Backlund
taken when she was underage, but was corrected at Backlund’s request to show
that the photo was taken the week of her 18th birthday. Stone’s threatening tweet to Backlund was
shown in the Gawker article, which was entitled “StickyDrama’s Christopher
Stone Is a ‘Sextortion’ Expert in More Ways Than One.” Chen quoted a Fox News report featuring
Stone, which stated, “‘A new type of blackmail is trapping teenagers,
especially those who have sent provocative pictures to friends. Hackers are stealing those photos and
threatening their senders.’” Chen noted
that Stone appeared on television ostensibly to warn teens about the dangers of
sextortion, but neglected to mention that he is a expert on the subject because
sextortion is something that Stone engages in himself. Gawker quotes Backlund (identified as
“Sarah”
expressing fear of Stone because of his threats to spam her toplessimage, saying, “He scares me shitless . . . he’ll take anything he can to smash
you.”
Stone
asserts a defamation per se claim against Backlund, alleging that her statements
to Gawker journalist Chen are false, unprivileged, expose him to hatred,
contempt and ridicule, and tend to injure his business. The statements are defamatory because they
charge him with the immoral and criminal activity of exposing a topless photo
of an underage girl on the Internet, and by regularly threatening to expose
compromising pictures of young girls.
Stone also seeks damages for emotional distress.
Backlund’s Anti-SLAPP Motion
Backlund
filed a motion to strike Stone’s cross-complaint under the anti-SLAPP
statute. Backlund argued that the
article on Gawker.com concerns a public controversy. Stone holds himself out as an expert,
appearing on camera as a commentator on sextortion for a nationally broadcast
television program, thereby “inserting himself into the public eye.” After Stone’s television appearance, Backlund
was contacted by investigative reporter Adrian Chen from Gawker.com, who wanted
to question her about Stone’s cyber-threat.
Backlund agreed to answer Chen’s questions if he protected her identity,
because she feared further cyber-bullying by Stone. Backlund reasoned that Stone’s
cross-complaint arises from Backlund’s exercise of her constitutional right of
free speech in connection with an issue of public interest, and is protected by
the anti-SLAPP statute. Backlund argued
that Stone cannot prevail on the merits of his cross-complaint because the
pseudonymous “Sarah” quoted in the Gawker.com article does not refer to Stone
as a sextortionist, and the entire article is hearsay.
In
opposition, Stone argued that Backlund’s statements to Adrien Chen did not
concern “an issue of public interest.”
Her comments only concerned the activities of Stone himself, which are
not a matter of public interest. Even if
Stone interjected himself into the controversy of sextortion by appearing as an
expert on a television news show, Backlund’s comments are still not protected
because they do not describe activity by Stone that qualifies as sextortion.
Stone claimed he is likely to
prevail on his claims because Backlund made statements about him that are
false, injure his reputation, and caused him extreme emotional distress. Stone submitted copies of various articles,
including an Associated Press item on a federal investigation that coined the
term “sextortion,” and an FBI webpage advising people how to avoid becoming
victims of sextortion.
Stone’s declaration was executed in
Buenos Aires, Argentina, and is not made under penalty of perjury under the
laws of the state of California. He admits
to threatening to expose a photograph of Backlund’s breasts, feeling that “the
only way to stop Backlund from harassing Mr. Tammen would be to send her a
strongly worded message. To that end, in
February 2010, I sent a ‘tweet’ to Backlund telling her that a topless picture
she sent to Mr. Tammen would be exposed if she contacted Mr. Tammen
again.” Stone believes that Backlund’s
statements to Chen were false because (1) the topless photograph was taken when
Backlund was 18 years old; (2) Stone’s tweet did not include a link to an image
of Backlund; and (3) “I did not continue to threaten Backlund with posting the
picture nor did I threaten others similarly.
Additionally, I did not engage in ‘sextortion’ because I never demanded
that Backlund send me additional topless photos or any money or property in
exchange for refraining from posting her photograph.” Stone’s declaration and appellate brief are
replete with irrelevant, offensive, unsupported hearsay statements about
Backlund that we do not deign to repeat.
The trial court denied Backlund’s motion to strike. “[T]he Court concludes that the gravamen of
the Cross-Complaint is not the interviewer’s own commentary subsequently
combined with Plaintiff’s statements, on a public-interest topic of
‘sextortion,’ but instead Cross-Defendant’s own comments, regarding an
individual experience, concerning alleged threats by Cross-Complainant. . .
. The instant fact pattern, of blindly
answering questions about one’s individual experience, without any awareness of
the author’s intended topic of the publication, distinguishes it from others
described in published opinions, where defendants themselves speak on issues of
public interest. In other words, the
focus of moving party’s alleged statements was upon a private controversy, and
the public-interest aspect, if any, was added surprisingly later, by the
author, who is not being sued.”
DISCUSSION
1. Appeal and Review
Appeal lies
from the order denying Backlund’s motion to strike under the anti-SLAPP
statute. (§ 425.16, subd. (i).) The anti-SLAPP statute applies to
cross-complaints, as well as to complaints.
(§ 425.16, subd. (h); Jarrow
Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 735, fn. 2.) The trial court’s ruling is subject to
de novo review. (
51 Cal.4th 811, 820; Soukup v. Law
Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)
2. Overview of
the Anti-SLAPP Statute
The
anti-SLAPP statute allows the courts to expeditiously dismiss “‘a meritless
suit filed primarily to chill the defendant’s exercise of
v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 670; § 425.16, subd.
(a); Simpson Strong-Tie, Co., Inc. v.
Gore (2010) 49 Cal.4th 12, 21.)
There are two components to a motion to strike brought under section
425.16. First, the defendant must show
that the claim arises from her exercise of the right to free speech. (Equilon Enterprises v. Consumer Cause,
Inc. (2002) 29 Cal.4th 53, 67.)
Second, if the lawsuit affects constitutional rights, the court
determines if there is a reasonable probability that the plaintiff will prevail
on the merits of his claims. (§ 425.16,
subd. (b)(1); City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76; Zamos
v. Stroud (2004) 32 Cal.4th 958, 965.)
To protect First Amendment rights, the anti-SLAPP statute must “be
construed broadly.” (§ 425.16,
subd. (a); Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at p. 735.)
3. Application of the
Anti-SLAPP Statute
a. Threshold Showing That the Lawsuit Arises
fm Protected Activity
Backlund
relies on two of the four categories covered by the anti-SLAPP statute. She claims that her interview with The
Gawker’s journalist was a “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 was “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)(3)-(4).)
An issue of public interest is “
‘significant’ to be protected by the anti-SLAPP statute.” (Nygard,
Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1042.) We have no difficulty concluding that the
topics of cyber-bullying and “sextortion” are matters of public interest. Stone himself provides the proof in his
moving papers: he attaches documents
showing that the danger to children posed by sextortion has been a topic of
widespread media coverage and has resulted in federal investigations and
prosecutions. The FBI addresses the
topic on its webpage, to alert people how to avoid becoming victims of
sextortion. Stone was interviewed on a
television program regarding sextortion.
If a newsletter sent to a handful of homeowners in a residential
community qualifies as constitutionally protected commentary on a matter of
public interest (Damon v. Ocean Hills
Journalism Club (2000) 85 Cal.App.4th 468), then a topic like sextortion
that commands the attention of a nationwide audience on Fox News and CNN—as
well as the attention of the FBI—certainly qualifies as a matter of public
interest.
An interactive Internet site or
news group is a “public forum” within the meaning of the anti-SLAPP statute,
and postings on an Internet news site come within the ambit of the statute’s
protection. (Barrett v. Rosenthal (2006) 40 Cal.4th 33, 41, fn. 4;
Cal.App.4th 669, 693; D.C. v. R.R. (2010)
182 Cal.App.4th 1190, 1226 [websites accessible to the public are public
forums]; Ampex Corp. v. Cargle (2005)
128 Cal.App.4th 1569, 1576.) Stone
states in his pleading that the articles about him in Gawker were “viewed by
thousands of people.” Gawker.com
qualifies as a readily accessible Internet news site and is therefore a public
forum within the meaning of the anti-SLAPP statue.
The article on Gawker takes aim at
Stone’s credibility as a television news commentator on sextortion. The article includes the tweet from Stone to
Backlund, threatening to spam “your floppy titties . . . all over the place.” Stone admits making this threat. The article begins by saying that five months
after Stone made the threat, “he appeared in a news report calmly warning teens
about the dangers of ‘sextortion.’”
Gawker takes Fox News to task for featuring Stone, whose expertise in
sextortion “comes from his own attempts at bullying a teenaged girl into
silence by threatening to release topless photos of her.”
Backlund’s comments printed on
Gawker.com are afforded protection by the anti-SLAPP statue. When Stone chose to be featured in the print
and television media as an expert on the topic of cyber-harassment, he
“voluntarily subjected [himself] to inevitable scrutiny and potential ridicule
by the public and the media.” (
97 Cal.App.4th 798, 807-808.) Because Stone
markets his expertise on sextortion, Backlund was within her rights to share
Stone’s threatening tweet, and to comment about her fear of Stone, who
possesses nude photos of her “and if I talk to anyone about it or stick my nose
into anything then he’ll release them.”
The Gawker article contributes to the ongoing public discussion about
sextortion, and about Stone’s role as a media commentator in that debate. As such, Backlund’s statements were not
private at all: they were a public
comment about a publicly disseminated threat against her made by public figure
Stone. Publicity about Stone’s threats
and Backlund’s resulting fear of Stone provide a cautionary lesson to the
youthful readers of Gawker, who might read Chen’s article and decide not to
upload nude images of themselves, lest the images fall into the wrong hands and
pose the risk of public humiliation in front of countless people. The published article about Backlund’s
chilling personal experience with Christopher Stone addresses a matter of grave
public concern.
title="">[4]
b. Probability of Stone’s Prevailing on the
Merits
The trial court did not reach the
second prong of the anti-SLAPP analysis, having erroneously concluded that this
involved a “private” matter. We review
the case de novo, so we discuss the second prong. Once the first prong of an anti-SLAPP motion
is satisfied, the burden shifts to the party asserting the cause of action to
establish a probability of prevailing. (
(2004) 118 Cal.App.4th 204, 213.) If the
claim stated in the pleading is supported by sufficient prima facie evidence,
it is not subject to being stricken as a SLAPP.
(Navellier v. Sletten (2002)
29 Cal.4th 82, 93; Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at
p. 738; Major v. Silna (2005)
134 Cal.App.4th 1485, 1498.)
Stone is a limited public
figure. A limited public figure “is an
individual who voluntarily injects him or herself or is drawn into a specific
public controversy, thereby becoming a public figure on a limited range of
issues” regarding the controversy giving rise to the alleged defamation. (Ampex
Corp. v. Cargle, supra, 128
Cal.App.4th at p. 1577; Gertz v. Robert
Welch, Inc. (1974) 418 U.S. 323, 351.)
It is sufficient that the person “attempts to thrust him or herself into
the public eye.” (Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 24.) Stone voluntarily thrust himself into a
public controversy concerning the publication of lewd or compromising
photographs of teenagers on the Internet.
In November 2009, by his own admission, Stone published an image of an
underage masturbating girl on StickyDrama, along with plaintiff’s contact
information, on a notorious website he operated. In February 2010, Stone admittedly tweeted a
threat to spam a topless photograph of plaintiff. In July 2010, Stone appeared on Fox News to
discuss “the scary new phenomenon” of publishing compromising photographs of
teenagers. He has also been featured in
the New York Times and on CNN.
Stone became a limited public
figure by operating a publicly accessible website that published lewd photos of
minors, and by seeking the public eye when he appeared on television and in
print media to discuss the topic of sextortion.
“Once he places himself in the spotlight on a topic of public interest,
his private words and conduct relating to that topic become fair game.” (Gilbert
v. Sykes, supra, 147 Cal.App.4th
at p. 25 [defendant thrust himself into the public debate on the merits of
plastic surgery by appearing on a television show].) Public figures must prove by clear and
convincing evidence that an alleged defamatory statement was made with actual
malice. (New York Times Co. v. Sullivan (1964) 376 U.S. 254, 279-280.)
Stone fails to carry his burden of
showing a probability that he will prevail on the merits of his claim. At the outset, we observe that Stone
forfeited or conceded the second prong because he “offered no evidence in the
trial court and makes no argument on appeal to establish that he is likely to
succeed on the merits of his claim.” (
Cal.App.4th 1255, 1263, fn. 7.)
Stone’s declaration in support of
his anti-SLAPP motion is inadmissible and must be disregarded. A declaration subscribed in California must
certify that it is “true under penalty of perjury,” and, if signed outside of
California, it must state that the declaration “is so certified or declared
under the laws of the State of California.”
(§ 2015.5.) Out-of-state
declarations that offend section 2015.5 “are not deemed sufficiently reliable
for purposes of that statute, unless they follow its literal terms.” (Kulshrestha
v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 611.) Any declaration that materially deviates from
the statute “cannot be used as evidence.”
(Id. at p. 618.)
Stone’s declaration does not
mention the penalty of perjury or the State of California. (§ 2015.5.)
Rather, it reads, “Executed this 30th day of June 2011 in Buenos Aires,
Argentina.” The declaration is wholly
inadmissible in this proceeding to show malice or anything else.
There is no proof that any of
Backlund’s statements during her interview were made with actual malice. Stone offers only the inadmissible
allegations of his unverified cross-complaint, along with his equally inadmissible
declaration. Neither of those documents
provide any proof of malice, let alone clear and convincing proof. Stone’s claims for
fall along with his defamation claim, because Backlund was exercising her right
to free speech. (See
Cal.3d 1092, 1120 [threats of divine retribution from church members was
protected religious speech and could not form the basis of a claim for
intentional infliction of emotional distress]; Brunette v. Humane Society of Ventura County (2002) 40 Fed.Appx.
594, 598 [while emotional distress may be considered an element of damage in a
properly stated defamation action, it cannot form the basis of an independent
claim on the same facts].)
We note that this was the third
article about Stone that appeared on Gawker.com: the first two were “StickyDrama: The Teen Gossip Site Run by a 31-Year-old
Pornographer” and “StickyDrama’s Owner Recorded a Live-Streamed Rape and Blogged
About It—But Didn’t Report It.” Despite
repeated features damning his reputation, Stone did not sue Gawker.com or
Adrien Chen for defamation. Instead, he
focused on a teenager to whom he admittedly sent a threatening message, when
she expressed her concerns and fears to the public about that threat. This follows Stone’s admitted publication of
a lewd photograph of an underage girl, whom he falsely identified as
plaintiff. Given Stone’s scurrilous and
outrageous behavior toward young women, he cannot be heard to complain when
confronted by one of his victims.
name="_ftnref5" title="">[5]
4. Attorney Fees
Backlund is entitled by statute to
recover attorney fees and costs she incurred in the trial court and on appeal,
as the prevailing party on her motion.
The amount of the fees is to be determined by the trial court upon
Backlund’s motion. (§ 425.16, subd.
(c)(1); City of Alhambra v. D’Ausilio (2011)
193 Cal.App.4th 1301, 1310.)
DISPOSITION
The
judgment is reversed. Backlund is
entitled to recover her attorney fees and costs on appeal. The case is remanded with directions to the
trial court to enter an order (1) dismissing Stone’s cross-complaint and (2)
awarding attorney fees and costs to Backlund incurred in both the
appeal.
NOT TO
BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN,
P.J.
We concur:
ASHMANN-GERST,
J.
CHAVEZ, J.
name="_ftn1" title="">[1] All
undesignated statutory references in this opinion are to the Code of Civil
Procedure.
name="_ftn2" title="">[2] “Him”
refers to a friend of Stone’s named Parker Tammen.
