Gibson v. Fleming
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.
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