Gibson v. Fleming CA2/6

Filed 7/30/13 Gibson v. Fleming CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

NEIL B. GIBSON, 2d Civil No. B245356 (Super. Ct. No. 56-2012-00414762-CU- Plaintiff and Respondent, DF-VTA) (Ventura County) v.

NICK FLEMING,

Defendant and Appellant.

Nick Fleming appeals an order denying his special motion to strike plaintiff's complaint pursuant to the anti-"SLAPP" (strategic lawsuit against public participation] statute. (Code Civ. Proc., § 425.16, subd. (b)(1).)1 We conclude that Fleming did not establish that the complaint arose from the exercise of his constitutional rights of petition or free speech in connection with a public issue, and affirm. (Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th 1337, 1347 [statement of general rule]; Gallagher v. Connell (2004) 123 Cal.App.4th 1260, 1271-1274.) FACTS AND PROCEDURAL HISTORY On March 28, 2012, Neil B. Gibson filed a complaint against Fleming, alleging causes of action for libel, slander, intentional infliction of emotional distress, and misappropriation of the common law right of publicity. Gibson alleged that Fleming stated falsely in Internet blogs and other web-based communications that Gibson

1 All further statutory references are to the Code of Civil Procedure.

committed fraud, associated with organized crime, and threatened Fleming. Gibson also alleged that Fleming falsely stated that Gibson was a "[t]errorist," a "[s]py," and the "[f]amous Philipino Phanthom." On June 15, 2012, Fleming filed an "anti-SLAPP" motion, asserting that the complaint arose from constitutionally protected activity. (§ 425.16, subd. (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 Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike"]; Barrett v. Rosenthal (2006) 40 Cal.4th 33, 41, fn. 4 [web sites accessible to the public are "public forums" for purposes of the SLAPP statute].) In part, Fleming argued that Gibson was a public figure based upon his laudatory self-description stated in many Internet sites. Fleming pointed out that a web site stated that Gibson was a "successful public figure" who performs "great work with international governments . . . in the humanitarian realm." Gibson opposed the special motion and declared that he was an investment banker who had acquired the honorary title of "Lord" through the purchase of land in England. Gibson stated that he is an English citizen but not a public official or member of Parliament. Gibson declared that in 2011, he employed an Internet consultant to repair the damage to his reputation caused by Fleming's Internet communications. The consultant issued press releases and created 10 websites to describe Gibson's good works. Gibson denied associating with organized crime or engaging in illegal or fraudulent acts. Following a hearing, the trial court denied Fleming's motion, ruling in part that he did not meet his initial burden of establishing that he made a "written or oral statement or writing . . . [in] a public forum in connection with an issue of public interest." (§ 425.16, subd. (e)(3).) The court determined that Gibson was not an "all- purpose public figure," but was, at best, "a limited public figure." In part, the court reasoned: "[Fleming] cannot simply rely on the alleged 'admission' by 'Lord Gibson' that he is a public figure. []Such self-aggrandizing puffing occurs on many . . . Facebook page[s], but does not make each [person] a public figure.[]" In view of its resolution, the