Gibson v. Fleming CA5

Filed 7/12/13 Gibson v. Fleming CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
NEIL B. GIBSON,
F065577
Plaintiff and Respondent,
(Super. Ct. No. S-1500-CV-276270)
v.
NICK V. FLEMING, JR., OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. William D.
Palmer, Judge.
Law Offices of David J. Harter, David J. Harter, for Defendant and Appellant.
Swanson O‟Dell, Jeremy D. Swanson and Seth N. O‟Dell, for Plaintiff and
Respondent.
-ooOoo-
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.
FACTUAL AND PROCEDURAL HISTORIES
Gibson filed this action on April 6, 2012. In his first amended complaint, Gibson
alleged that on several dates in 2011 and 2012, Fleming made, on websites controlled by
him, postings that included or implied a variety of false and defamatory statements.
These included that Gibson was a perpetrator of fraud involving a type of financial
instrument called an international bill of exchange (IBOE); that Gibson was wanted by
law enforcement authorities in the United Kingdom; that Gibson was a spy, terrorist, and
associate of organized crime figures; that Gibson traded in counterfeit goods; that
Gibson, who refers to himself as Lord Gibson, was a phony lord; and that agents of
2.
Gibson threatened Fleming. The complaint stated that all these statements are false and
that Gibson has never engaged in any illegal activity. The complaint also alleged that
Fleming sent an e-mail to Gibson threatening to kill Gibson and harm Gibson‟s family.
Further, Fleming used Gibson‟s name without permission in the web addresses of several
websites Fleming created. Fleming also allegedly stated on a website that Gibson was on
vacation in Las Vegas at a certain time; then Fleming or someone who read Fleming‟s
post approached Gibson in Las Vegas and tried to take his picture. Finally, the complaint
stated that Gibson is an investment banker and he lost the financial backing of four banks
for a business project because the banks had seen Fleming‟s Internet postings.
The complaint alleges seven causes of action: libel; slander; intentional infliction
of emotional distress; misuse of Gibson‟s name in violation of his right of publicity;
false-light invasion of privacy; invasion of privacy by publication of private facts; and
interference with prospective business advantage. Gibson prayed for an injunction, a
declaratory judgment, and damages of $2 million.
Fleming responded to the complaint by filing a special notice to strike pursuant to
the anti-SLAPP statute, Code of Civil Procedure section 425.16.1 Fleming argued that
the motion should be granted because Gibson‟s claims arose from alleged statements
about matters of public interest and because Gibson could not establish a probability that
he would prevail.
In his memorandum of points and authorities in support of the motion, Fleming
argued that his allegedly defamatory statements concerned a matter of public interest
because he made those statements in a public forum (the Internet) and they were
statements about a public figure. Fleming contended that Gibson was a public figure
because of Gibson‟s own websites in which he was described as an international leader in
1SLAPP stands for strategic lawsuit against public participation. (Equilon
Enterprises v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 57.)
3.
humanitarian and business activities. As exhibits to a declaration in support of the
motion, Fleming submitted pages printed from 11 websites that promoted Gibson and
incorporated Gibson‟s name into their web addresses. One site stated:
“Who is Lord Neil B. Gibson? [¶] Oftentimes, successful public figures
become skewed by the opinions of others. The truth is, beyond his great
work with international governments, within the financial sector, and in the
humanitarian realm, Lord Neil Gibson is, simply put, a good man who is
striving to make a positive difference in this world.”
The same site describes Gibson as a “well-traveled … global ambassador” and
discusses humanitarian projects in which he has been involved. He once “served as
Ambassador at Large” in west Africa. He was involved with a project with Firestone
Tire Company in which shipping containers, after delivering rubber to the United States
from a plantation in Liberia, were sent back filled with books, clothing, and other
supplies. In Iraq, Gibson was “integral in efforts to rebuild the infrastructure,” including
hospitals. He “sent much funding and financial support” to “the still-struggling New
Orleans.” In Lesotho, a small nation surrounded by the Republic of South Africa, he
“partnered with both the royal family and major corporate investors to rebuild this tiny
nation‟s economy.” In South Africa itself, Gibson was “working tirelessly to bring
boxing and other entertainment events to this country, which will provide much-needed
stimulus to the local economy!” In Belize, “our ambassador to the world is working with
the local government to see a major new road built, and also to bring a film studio to the
area!”
Other sites made similar claims. One stated that “there are a handful of people
who can make a legitimate claim to having truly changed the world,” and that “[o]ne of
the most important, but arguably least-known members of this elite group of big-picture
world changers is a fellow by the name of Lord Neil Gibson.”2
2Another
of Gibson‟s sites asserts that Gibson “earned his title simply through a
land purchase, not because he was born into royalty or because he serves in Parliament.”
4.
In his opposition to the anti-SLAPP motion, Gibson acknowledged that he
maintained self-promotional websites, but contended that these did not make him a public
figure. He argued that all the websites were related to his business activities and that his
self-promotion did not convert him into a public figure, even though it refers to him using
the term “public figure.” Some of the websites were Gibson‟s “attempts to combat
[Fleming‟s] slander and save [Gibson‟s] livelihood.” Gibson went on to argue that there
was a probability he would succeed on the merits of his claims, so the motion should be
denied even if he were a public figure or the subject of the allegedly defamatory
statements was a matter of public interest.
The trial court issued a written ruling:
“Defendant‟s motion to dismiss the first amended complaint relying on
[Code of Civil Procedure] § 425.16, is denied.
“The court concludes that the Defendant fails in [his] attempt to establish
that his activity/statements in regard to plaintiff are protected. Defendant
claims that plaintiff is a public figure and thus statements in a public forum
are protected. Defendant points to plaintiff‟s statements about himself as
establishing the public figure status. At first „blush‟ this argument is
appealing, however, on further analysis, the reasoning must fail. A self-
proclaimed public figure, without more, certainly cannot be sufficient to
make the individual an all-purpose public figure. Therefore, at best,
Plaintiff is a limited purpose public figure. Thus, speech in regard to
plaintiff must encompass a public issue, and the burden of establishing that
there exists a public issue rests with Defendant. Defendant has not met his
burden on that issue, and thus has not met his burden on the first prong of
the two pronged process.”
Gibson submitted papers purporting to document his purchase, in 2008, of the title of
“Lord of the Manor of Warter Priory or Wheldrake” from someone named Viscount
Dunkley, through a British solicitor named Harvey Richard Osler. The papers do not
refer to any transfer of land and appear to relate only to the sale of the title.
5.
DISCUSSION
As the California Supreme Court has explained, a “SLAPP is a civil lawsuit that is
aimed at preventing citizens from exercising their political rights or punishing those who
have done so.” (Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal. 4th 12, 21.) “In
1992, out of concern over a „disturbing increase‟ in these types of lawsuits, the
Legislature enacted … the anti-SLAPP statute [i.e., Code Civ. Proc., § 425.16]. The
statute authorized the filing of a special motion to strike to expedite the early dismissal of
these unmeritorious claims.” (Ibid.)
“A special motion to strike involves a two-step process. First, the defendant must
make a prima facie showing that the plaintiff‟s „cause of action … aris[es] from‟ an act
by the defendant „in furtherance of the [defendant‟s] right of petition or free speech … in
connection with a public issue.‟” (Simpson Strong-Tie Co., Inc. v. Gore, supra, 49
Cal.4th at p. 21.) If the defendant meets this threshold, the court considers the second
step of the inquiry, i.e., whether the plaintiff has established a probability that the plaintiff
will prevail on the claim. (Ibid.)
Code of Civil Procedure section 425.16, subdivision (e), defines an “„act in
furtherance of a person‟s right of petition or free speech under the United States or
California Constitution .…‟” The portions of the definition relevant to this case are
“(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, or (4) 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.” (Code
Civ. Proc., § 425.16, subd. (e)(3), (4).) We review an order granting or denying an anti-
SLAPP motion de novo. (Smith v. Adventist Health System/West (2010) 190 Cal. App. 4th
40, 52.)
To prevail under either subdivision (e)(3) or subdivision (e)(4) of Code of Civil
Procedure section 425.16, Fleming was required to show that his alleged statements were
6.
“in connection with an issue of public interest.” One way Fleming could have showed
this was by means of evidence that Gibson was a public figure. (Rivero v. American
Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal. App. 4th
913, 924 (Rivero) [statements concerning “a person or entity in the public eye” can
satisfy issue-of-public-interest requirement].)
“There are two types of public figures: „The first is the “all purpose” public
figure who has “achieve[d] such pervasive fame or notoriety that he
becomes a public figure for all purposes and in all contexts.” The second
category is that of the “limited purpose” or “vortex” public figure, an
individual who “voluntarily injects himself or is drawn into a particular
public controversy and thereby becomes a public figure for a limited range
of issues.”‟ [Citation.] Thus, one who undertakes a voluntary act through
which he seeks to influence the resolution of the public issues involved is a
public figure. [Citation.]” (Sipple v. Foundation for Nat. Progress (1999)
71 Cal. App. 4th 226, 247.)
Another way in which Fleming could have showed that his allegedly defamatory
statements concerned an issue of public interest would be by means of evidence that
those statements related to “conduct that could directly affect a large number of people
beyond the direct participants” or a “topic of widespread, public interest.” (Rivero,
supra, 105 Cal.App.4th at p. 924.)
Fleming argues that Gibson admits he is “an internationally known public figure”
because he acknowledges his websites touting his involvement in various projects around
the world, describing him as an important humanitarian and financier, and using the term
“public figure” in reference to him. Fleming‟s motion, however, could not properly be
granted based on these facts.3
3Fleming also contends that Gibson is a public figure because “a Google search
[on his name] yields about 10,100,000 results in 0.45 seconds .…” This argument might
be persuasive to someone who has never performed a search on the Internet. Anyone
who has done so knows that virtually any search produces a similarly enormous number
of results in a fraction of a second.
7.
The facts do not show that Gibson is a public figure for all purposes. A person is a
public figure for all purposes if he has achieved pervasive fame or notoriety. Gibson‟s
self-promotional websites, claiming that he has been involved in a handful of obscure
projects and opining that he is important, do not show that he has achieved pervasive
fame or notoriety.
The facts also do not show that Gibson is a public figure for any limited purposes
relevant to this case. Gibson‟s websites do not indicate that he has thrust himself into any
public controversy on the subjects of whether he is a fraudfeasor, spy, terrorist, or phony
lord. They show only that Gibson wishes to promote himself by claiming he has engaged
in various good works.
Fleming argues that, even if Gibson‟s websites and Gibson‟s description of
himself as a public figure do not conclusively prove that Fleming‟s allegedly defamatory
statements relate to an issue of public interest, they still are some evidence of this, and no
more is required. Fleming maintains that, “[i]n making out a prima facie case under the
first prong [of the anti-SLAPP analysis], any admissible evidence is sufficient.” He cites
no applicable authority in support of this proposition, however. He cites Soukup v. Law
Offices of Herbert Hafif (2006) 39 Cal. 4th 260, 291, but there the Supreme Court was
discussing the standard for the second prong of the anti-SLAPP analysis, and in any event
it did not say that “any” evidence was sufficient to satisfy that prong. Instead, the
plaintiff must show that his or her claim has “„minimal merit.‟” (Ibid.). Fleming also
cites Carson v. Facilities Development Co. (1984) 36 Cal. 3d 830, 838-839, in which the
Supreme Court stated the standard for deciding a motion for nonsuit. As with Fleming‟s
other citation, this one is not relevant to the analysis at issue, and in any case does not say
that “any” evidence is enough. (To survive a motion for nonsuit, a plaintiff‟s evidence
must be sufficient to support a jury verdict if it is assumed to be true; conflicting evidence
is disregarded; and all presumptions, inferences, and doubts are resolved in favor of the
plaintiff (ibid.).)
8.
While we do not believe the first prong of the anti-SLAPP analysis is satisfied by
merely “any” evidence that the plaintiff is a public figure, we are not aware of authority
stating exactly what the evidentiary standard applicable to this showing is. It is
unnecessary for us to determine what the standard is, however, because we are confident
that Fleming‟s showing fails under any standard. Gibson‟s websites do not support the
view that Gibson is a public figure. The puffery on those websites provides no support
for the notion that Gibson has achieved pervasive fame or notoriety. It also provides no
support for the contention that Gibson is a public figure for the limited purposes relevant
to this lawsuit, since they do not indicate that Gibson has thrust himself into any public
controversy.
Fleming next argues that his allegedly defamatory statements related to an issue of
public interest because there were other websites, to which Fleming‟s site provided links,
or from which it republished content, that discussed Gibson. He says, “As [Gibson]
admits, [Fleming] has allegedly linked other people’s articles about „Lord‟ Gibson to
[Fleming‟s] websites.… Clearly, other people are writing about Lord Gibson and started
doing so before [Fleming] took any interest.” Fleming also says Gibson‟s websites must
exist in part to combat negative publicity, indicating that public debate about him is
ongoing.
Fleming fails to support these contentions. Fleming cites Gibson‟s declaration,
which in turn refers to a third-party article republished on one of Fleming‟s sites. A
reference to Gibson appears in approximately the 25th paragraph of this long article,
which originally appeared on a website called “Unwanted Publicity Intelligence.” The
paragraph states that Gibson was “believed to be” an “international bank paper trading
fraudster,” but in reality was a government agent “feigning to be a „trader‟ brokering
what actually turned out to be a sting operation .…” This reference does not show that
Gibson has achieved pervasive fame or notoriety, or that any public controversy exists
9.
into which Gibson has inserted himself. Fleming does not identify anything else in the
record as having been written about Gibson by “other people.”
In the reply brief he submitted to this court, Fleming makes an additional
argument for the first time. He says his allegedly defamatory statements are comparable
to the warnings of a consumer advocate to the public about an allegedly unethical vendor,
or warnings about a possible criminal to a class of potential victims. He cites Wilbanks v.
Wolk (2004) 121 Cal. App. 4th 883 (Wilbanks) and Terry v. Davis Community Church
(2005) 131 Cal. App. 4th 1534 (Terry).
In Wilbanks, the defendant was an author of several books about viatical
settlements who also maintained a website on the subject.4 The plaintiffs were viatical
settlements brokers. (Wilbanks, supra, 121 Cal.App.4th at p. 889.) The defendant‟s
website advised readers to be careful when dealing with the plaintiffs, as the plaintiffs
were incompetent and unethical and were under investigation by the state department of
insurance. (Id. at p. 890.) The plaintiffs sued for defamation and the defendant filed an
anti-SLAPP motion. (Ibid.) The Court of Appeal held that the defendant‟s allegedly
defamatory statements were made in connection with an issue of public interest. Even
though the plaintiffs “are not in the public eye, their business practices do not affect a
large number of people and their business practices are not, in and of themselves, a topic
of widespread public interest,” still, “[c]onsumer information … at least when it affects a
large number of persons … generally is viewed as information concerning a matter of
public interest.” (Id. at p. 898.) The viatical settlement industry involved large numbers
of people both as buyers and sellers and the defendant was a provider of information
about it to consumers. Her warning not to use the plaintiffs‟ services was provided in a
4A viatical settlement is a transaction in which a terminally ill insured sells his or
her life insurance policy to a third party. The insured receives cash to pay for medical
and living expenses. The third party receives the benefits of the policy when the insured
dies. (Wilbanks, supra, 121 Cal.App.4th at p. 889.)
10.
context of information provided to consumers to aid them in choosing among brokers.
This meant her allegedly defamatory statements concerned a matter of public interest.
(Id. at pp. 899-900.)
In Davis, the defendants were a church and its leaders, and the plaintiffs were
employees of the church who worked in its youth program. The defendants investigated
allegations of an inappropriate, possibly sexual, relationship between the plaintiffs and a
teenage participant in the youth program. The church released the report of its
investigation to about 100 parents of the other teenagers in the program. The report
detailed a series of inappropriate e-mail messages between the girl and the plaintiffs,
among other things. (Terry, supra, 131 Cal.App.4th at pp. 1539-1540, 1543.) The
plaintiffs sued the defendants for defamation and the defendants filed an anti-SLAPP
motion. (Id. at pp. 1538, 1539-1540.) The Court of Appeal held that the allegedly
defamatory statements in the report concerned an issue of public interest “because they
involved the societal interest in protecting a substantial number of children from
predators” and the matter was referred to the police for a criminal investigation. (Id. at
p. 1547.) The court also found it significant that the “plaintiffs‟ actions gave rise to an
ongoing discussion” within the church and among the parents “about protection of
children.” (Id. at p. 1550.)
Fleming‟s argument based on these cases comes too late. In his briefs and oral
argument in the trial court, and in his opening brief in this court, he never argued that he
was a consumer advocate, or was similar to a reporter to parents of suspicious activities
that placed their children at risk of molestation. In fact, even though Gibson argued in his
opposition brief in the trial court that the creation of fraudulent international bills of
exchange would not, by itself, be a matter of public interest, Fleming did not take the
opportunity to contend that it would be, and that he therefore should prevail on the point
regardless of whether or not Gibson was a public figure. Instead, Fleming stuck to his
argument that Gibson was either a public figure for all purposes or a public figure for a
11.
limited purpose. The view that Fleming‟s postings were about an issue of public interest
because they warned the investing public about a fraudulent financial product—
regardless of Gibson‟s status as a public figure—appears in Fleming‟s submissions for
the first time on appeal, and then only in his reply brief.
The argument therefore is forfeited. “Obvious reasons of fairness militate against
consideration of an issue raised initially in the reply brief of an appellant.” (Varjabedian
v. City of Madera (1977) 20 Cal. 3d 285, 295, fn. 11.) “It is fundamental that a reviewing
court will not consider issues not raised in the trial court.” (Lemelle v. Superior Court
(1978) 77 Cal. App. 3d 148, 159.) “An argument or theory will generally not be
considered if it is raised for the first time on appeal.” (American Continental Ins. Co. v.
C & Z Timber Co. (1987) 195 Cal. App. 3d 1271, 1281.) Although we have discretion in
exceptional cases to consider a forfeited issue (In re Sheena K. (2007) 40 Cal. 4th 875,
887, fn. 7), we see no reason to do so in this case.
Request for judicial notice and evidentiary objections
Fleming filed an amended request for judicial notice on February 21, 2013. He
asks us to take notice of a copy of a complaint filed against him by Gibson in Ventura
County Superior Court on March 28, 2012, and a printout of docket information from that
case. The complaint alleges facts and causes of action that appear to be essentially the
same as those alleged in this case. The case in Ventura County appears to have
progressed far, with an anti-SLAPP motion having been filed and denied and a jury trial
calendared. On December 28, 2012, Gibson filed objections to evidence Fleming
submitted to the trial court in support of his anti-SLAPP motion, and to the materials of
which Fleming requests judicial notice.
The filing of a possibly duplicative action in another county has no bearing on our
analysis or disposition of this appeal. Fleming‟s only argument about the other case is
that its existence supports his argument that this case is frivolous and therefore Gibson
cannot make the showing of likely success required to satisfy the second prong of the
12.
anti-SLAPP analysis. Since we hold that the trial court correctly found Fleming had
failed to satisfy the first prong, we do not address the question of the second prong. The
question of what, if anything, should be done about the existence of the other action is a
matter for the trial court. Fleming‟s request for judicial notice therefore is denied as
moot.
We would affirm the judgment with or without the evidence to which Gibson
objects. His evidentiary objections therefore are overruled on the ground that they are
moot.
DISPOSITION
The trial court‟s order denying Fleming‟s anti-SLAPP motion is affirmed. Costs
on appeal are awarded to Gibson.
Fleming‟s amended request for judicial notice, filed on February 21, 2013, is
denied. Gibson‟s evidentiary objections, filed on December 28, 2012, are overruled.
_____________________
Wiseman, Acting P.J.
WE CONCUR:
_____________________
Levy, J.
_____________________
Peña, J.
13.