In this anti-SLAPP law
The record
On June 22, 2010, Chaker filed a complaint against Wendy and Nicole, among others. As we indicated, Chaker's complaint alleges a single cause for defamation based on the statements which appeared on the Internet Web sites.
Wendy appeared in the action and moved to strike the complaint under the Anti-SLAPP Law. (Code Civ. Proc.,
"If the court finds the defendant has made the requisite showing, the burden then shifts to the plaintiff to establish a `probability' of prevailing on the claim by making a prima facie showing of facts that would, if proved, support a judgment in the plaintiff's favor. [Citation.] The court also considers the defendant's opposing evidence, but only to determine if it defeats the plaintiff's showing as a matter of law. [Citation.] That is, the court does not weigh the evidence or make credibility determinations. [Citations.] Finally, in assessing the probability the plaintiff will prevail, the court considers only the evidence that would be admissible at trial. [Citations.]
"Whether section 425.16 applies, and whether the plaintiff has shown a probability of prevailing, are both questions we review independently on appeal. [Citation.]" (Kashian v. Harriman, supra, 98 Cal.App.4th at p. 906.)
Initially, Chaker claims that because Wendy allegedly posted her statements on Internet Web sites and they were about matters which concerned his dispute with her daughter, they were not statements which implicated her right of free speech. Like the trial court, we reject this contention.
The leading case with respect to Internet postings on consumer oriented Web sites, such as the ones where Wendy allegedly posted her statements, is
"We conclude, therefore, that Wolk's statements were made in a public forum." (Wilbanks, supra, 121 Cal.App.4th at pp. 896-897.)
In finding Wolk's statements were in the public interest, the court stated: "That the information provided here is in the nature of consumer protection information distinguishes this case from others recognizing that a publication does not become connected with an issue in the public interest simply because it is widely disseminated, or because it can be used as an example of bad practices or of how to combat bad practices. The statements made by Wolk were not simply a report of one broker's business practices, of interest
In concluding statements about the coach's style were a matter of public interest to the parents of players, the court stated: "[I]t would appear that plaintiff essentially agrees that the suitability of his coaching style was a matter of public interest among the parents. As plaintiff testified, he himself urged the team parents to join in an investigation of his suitability to coach the young players because it involved `the well being of our kids.' In his words: `Please, if you would, take the time to answer [Perri's] questions fully and truthfully, and don't hold anything back on the grounds that it might be hurtful to me. I think that if the PTO wants to ensure the well being of our kids (at least in this one, highly-selective occasion) everyone should be forthcoming.' [¶] ... [¶]
In Terry, which the court in Hecimovich relied upon, the plaintiffs, church youth group leaders, were accused by the defendants of having an inappropriate sexual relationship with a minor female member of the youth group. In rejecting the plaintiffs' contention their relationship with the minor was solely a private matter, the court stated: "Plaintiffs characterize the issue in this case as a private relationship between George Terry and the girl. Not so. The issue as to whether or not an adult who interacts with minors in a church youth program has engaged in an inappropriate relationship with any of the minors is clearly a matter of public interest. The public interest is society's interest in protecting minors from predators, particularly in places such as church programs that are supposed to be safe. It need not be proved that a particular adult is in actuality a sexual predator in order for the matter to be a legitimate subject of discussion." (Terry, supra, 131 Cal.App.4th at p. 1547.)
In light of the principles and holdings in Wilbanks, Hecimovich and Terry, we have little difficulty concluding Wendy's statements were made in a public forum. Like the court in Wilbanks, we view the Internet as an electronic bulletin board open to literally billions of people all over the world. (See Wilbanks, supra, 121 Cal.App.4th at p. 897.) The Internet is a classic public forum which permits an exchange of views in public about everything from the great issues of war, peace, and economic development to the relative quality of the chicken pot pies served at competing family restaurants in a single small neighborhood.
We also have little difficulty finding the statements were of public interest. The statements posted to the "Ripoff Report" Web site about Chaker's character and business practices plainly fall within the rubric of consumer information about Chaker's "Counterforensics" business and were intended to serve as a warning to consumers about his trustworthiness. The remaining statements were posted to the "topix" Web site, which identified itself as a social networking site ("Join the Topix Community") and permitted users to create their own profile and post information on its forum. These statements also fall within the broad parameters of public interest within the meaning of section 425.16. Of particular significance is the fact that it appears from the record Chaker became the subject of statements on the "topix" Web site only after he posted a profile on the Web site and it generated responses from other members of the community, including apparently statements from Wendy. Having elected to join the topix Web site, Chaker clearly must have recognized that other participants in the Web site would have a legitimate interest
Because the record shows the statements which give rise to Chaker's defamation claim were made in a public forum with respect to a matter of public interest within the meaning of section 425.16, subdivision (e)(3), Chaker bore the burden of showing a probability of prevailing on his defamation claim. (§ 425.16, subd. (b)(1).)
"While plaintiff's burden may not be `high,' he must demonstrate that his claim is legally sufficient. [Citation.] And he must show that it is supported by a sufficient prima facie showing, one made with `competent and admissible evidence.' [Citations.]" (Hecimovich, supra, 203 Cal.App.4th at pp. 468-469.)
In Summit Bank, the defendant posted a series of derogatory statements about the plaintiff bank: "(1) The Bank didn't pay dividends in 2009; (2) the `bitch CEO' who runs the Bank `thinks that the Bank is her personel [sic] Bank to do with as she pleases'; (3) the CEO should not be allowed to provide an executive position to her `worthless, lazy fat ass son'; (4) depositors should move their accounts immediately,`before its [sic] too late'; (5) the Bank is `screwed up,' `piss poor,' and a `problem Bank'; (6) the Federal Deposit Insurance Corporation (FDIC) and California's Department of Financial Institutions have `look[ed] at Summit Bank' three times in less than one year and that is `not a good thing'; (7) service was poor at the Bank's Hayward branch and the Bank closed it; (8) after the Hayward branch was closed, the customers `were left high and dry'; and (9) the Bank's depositors should leave `before they close.'" (Summit Bank, supra, 206 Cal.App.4th at p. 697.)
The plaintiff bank in Summit Bank alleged the statements taken together, and in particular the statement the CEO used the bank as her personal bank and the plaintiff was a "problem bank," suggested the CEO was misappropriating money and the bank was on the verge of insolvency. In finding the defendant's statements were nonactionable opinions, the court relied in part on the fact they were posted on the Internet craigslist "rants and raves" Web
In Krinsky the court found the following statements, made on an Internet blog, were hyperbolic opinions: "`[F]unny and rather sad that the losers who post here are supporting a management consisting of boobs, losers and crooks. (Krinsky, Natan and Seifer) while criticizing a charitable and successful hedge fund manager, who, unlike his critics and the longs here, has done his homework. [¶] How many of the idiot longs here did their work and said to themselves, "I know Natan had been CFO of at least 3 bankrupt companies and I know Seifer filed for personal bankruptcy and roughed up some patients, shares a rolls royce and a bently [sic] with the President and a $15mm [sic] mansion, but what the hey, the numbers look good and it has been a long time." [¶] No, Loeb earned his $$$ and those of you who are whimpering on eachother's [sic] shoulders crying to be saved by Spizer, the SEC etc are a bunch of pathetic losers .... But we already knew that, you were long SFCC. [¶] Ole!'" (Krinsky, supra, 159 Cal.App.4th at p. 1176.) Like the court in Summit Bank, the court in Krinsky relied in large part on the fact the statements were made on an Internet message board where heated discussions about the plaintiff were taking place. (Id. at pp. 1175, 1177-1178.)
This brings us to the question of law which, under Gregory v. McDonnell Douglas Corp., supra, 17 Cal.3d at page 601 we are required to resolve: were the statements which Mateo allegedly made statements of provable fact or mere opinions? As we have noted, the statements about Chaker were made in the context of the paternity and child support litigation going on between Chaker and Wendy's daughter and all were made on Internet Web sites which plainly invited the sort of exaggerated and insulting criticisms of businesses and individuals which occurred here. The overall thrust of the comments attributed is that Chaker is a dishonest and scary person. This overall appraisal of Chaker is on its face nothing more than a negative, but nonactionable opinion.
In this context it is difficult to conclude Mateo's alleged embellishments, to the effect Chaker picks up streetwalkers and homeless drug addicts and is a deadbeat dad, would be interpreted by the average Internet reader as anything more than the insulting name calling — in the vein of "she hires worthless relatives," "he roughed up patients" or "he's a crook" — which one would expect from someone who had an unpleasant personal or business experience with Chaker and was angry with him rather than as any provable statement of fact. In this regard, we note the insults are generalized in that they lack any specificity as to the time or place of Chaker's supposed behavior; the absence
The only statement which might arguably fall outside the scope of nonactionable opinion or epithet is the statement Mateo is a criminal. However, that statement is true. As the trial court noted, the fact Chaker's conviction was later expunged did not prevent others from making true statements about his criminal history.
The order striking Chaker's complaint is affirmed. Mateo to recover her costs of appeal.
O'Rourke, J., and Irion, J., concurred.
"`(a) The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.
"`(b)(1) A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or 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.
"`(2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. [¶] ... [¶]
"`(e) As used in this section, "act in furtherance of a person's 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.' (Italics added.)" (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 905-906 [120 Cal.Rptr.2d 576].)