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ZWEBNER v. COUGHLIN

October 5, 2005.

MICHAEL J. ZWEBNER, UNIVERSAL COMMUNICATIONS SYSTEMS, INC. and AIRWATER CORP., Plaintiffs,
v.
JAMES W. COUGHLIN a/k/a IRISHJIM44 and DOES 1-25, Defendants.



The opinion of the court was delivered by: JOHN HOUSTON, Magistrate Judge

ORDER GRANTING DEFENDANT'S MOTION TO STRIKE PLAINTIFFS' COMPLAINT PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE § 425.16
[DOC. # 5]
INTRODUCTION
Defendant James W. Coughlin a/k/a IRISHJIM 44 ("defendant") has filed a motion to strike the complaint filed by plaintiffs Michael Zwebner ("Zwebner"), Universal Communications Systems, Inc. ("Universal"), and Airwater Corp. ("Airwater") (collectively "plaintiffs"). A hearing was held on the motion, during which the parties presented extensive oral argument. After a thorough review of the pleadings, relevant exhibits submitted by both parties, the oral argument presented at the hearing, and for the reasons set forth below, this Court GRANTS defendant's motion to strike plaintiffs' complaint.

BACKGROUND

  Plaintiffs, on June 21, 2005, filed the instant complaint seeking damages for defamation and intentional infliction of emotional distress. See Compl. at 8. Jurisdiction is founded on diversity of citizenship. Id. ¶ 1. Zwebner previously acted as Chairman of Talk Visual Corporation, a publicly traded company with the trading symbol "TVCP", now "TVCE." Id. ¶ 2. Zwebner acts as Chairman of Universal, a publicly traded company with the trading symbol "UCSY." Id.

  Plaintiffs, in their complaint, allege that defendant posted messages on internet sites which "contained falsehoods, lies, [and] innuendoes." Compl. ¶ 10. Plaintiffs' claims arise out of the posting of certain comments by defendant on internet message boards*fn1 devoted to Universal, TVCP and TVCE, where various individuals with internet access may post and read messages concerning "stock talk." Id. ¶ 9, 10, 11. The internet contains many "stock talk" bulletin boards that permit the public to post messages anonymously. Id. at 9. Plaintiffs allege that defendant posted "false and libelous" messages about plaintiffs on message boards devoted to Universal, TVCP and TVCE. Id. ¶ 12. These message boards are very active; over 55,000 messages have been posted on the message board devoted to Universal and over 173,000 messages were posted on the message board devoted to TVCE. See Deft's Notice of Lodgment, Exhs. 14, 15. Posters to these message boards are advised:
DON'T BELIEVE EVERYTHING YOU READ
While reading the message boards you will find lots of opinions. Please be advised that some members may post information that is biased, misleading or false. When it comes right down to it, you are responsible for the decisions you make about your own money. Never trust a single information resource, whether a post on this Web site or a stock tip by the water cooler.
Id., Exh. 13.
  Plaintiffs' complaint points to the following messages allegedly posted by defendant:
ZWEBNER is like a Child Molester — UCSY post # 18291 ZWEBNER is the `devil' — TVCE post # 169782 ZWEBNER and his cronies make `death threats' UCSY post # 26165 ZWEBNER is a `thief' — TVCE post # 170374 ZWEBNER has `embezzled funds' — TVCE post # 170739 ZWEBNER has looted `companies and shareholders — UCSY post # 7326 ZWEBNER is an `unethical person & common criminal' — UCSY post # 7580 ZWEBNER is a `thief' — UCSY post # 7585 ZWEBNER is a `crook' — UCSY post # 8064 ZWEBNER, theft and fraud — UCSY post # 9501 ZWEBNER `has his offshore accounts, offshore companies and BATLINER to help him in his shorting' — UCSY post # 13984 ZWEBNER — No self respecting Jew would want a gift from ZWEBNER, knowing his background — UCSY post # 14447 ZWEBNER — `Maybe it is because of his `suspected' award that he received from the US Government that no one seems to be able to find out about' — UCSY post # 14909 ZWEBNER — `is that `lapdancing' os (sic) `wheelchair racing' for the mentally impaired' — UCSY post # 20977 ZWEBNER — `YAKC2 for 1 = ZWEBNER' — UCSY post # 25984 ZWEBNER — `Only ZWEBNER and his cronies make Death Threats' — UCSY post # 26165
Compl. ¶ 11.

  Defendant, on July 15, 2005, filed the instant motion to strike plaintiff's complaint, pursuant to Cal. Code Civ. P. § 425.16, which the Court set for hearing on September 22, 2005. On July 21, 2005, defendant filed an ex parte application seeking to advance the hearing date. This Court denied defendant's ex parte application on July 22, 2005. See Doc. # 11. Plaintiffs filed an opposition on September 7, 2005 and defendant filed a reply brief on September 15, 2005. This Court heard oral argument from the parties on September 22, 2005.

  DISCUSSION

  Defendant moves to strike plaintiff's complaint pursuant to California Code of Civil Procedure 425.16 "on the ground that [the complaint] is purely designed to suppress protected speech." Mot. at 1.

  1. Legal Standard

  California law disfavors certain lawsuits designed to chill free speech activities. Such suits are known as Strategic Litigation Against Public Participation, or "SLAPP," lawsuits. In 1992, the California State Legislature found 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.
Cal. Code Civ. Proc. § 425.16(a). California Code of Civil Procedure section 425.16 ("section 425.16") permits a defendant to dismiss a lawsuit if the alleged bad acts arose from his or her exercise of free speech "in connection with a public issue" and if the plaintiff cannot show a probability of success on his or her claims. Cal. Code Civ. Proc. § 425.16(b)(1).

  In a special motion to strike under section 425.16, California's Anti-SLAPP statute, the defendant has the initial burden of making a prima facie showing that the plaintiffs claims are subject to section 425.16. Equilon Enterprises, LLC v. Consumer Cause, Inc., 29 Cal. 4th 53, 67 (2002); ComputerXpress, Inc. v. Jackson, 93 Cal. App. 4th 993, 999 (2001). If the defendant makes that showing, the burden shifts to the plaintiff to establish a probability of prevailing, by making a prima facie showing of facts which would, if proved, support a judgment in the plaintiff's favor. ComputerXpress, 93 Cal. App. 4th at 999.

  2. Analysis

  a. Defendant's Prima Facie Showing

  Under Section 425.16 an act in furtherance of a person's right of petition or free speech 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 ...


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