APPEAL from an order of the Superior Court of San Diego County, Timothy Taylor, Judge. (Super. Ct. No. 37-2010-00094816-CU-DF-CTL)
The opinion of the court was delivered by: Benke, Acting P. J.
CERTIFIED FOR PUBLICATION
In this Anti-SLAPP Law*fn1 case, the trial court determined plaintiff's complaint, which alleges a single defamation cause of action, arises from defendant's exercise of her constitutional right of free speech and that plaintiff failed to establish a probability he would prevail on those claims. We agree with the trial court that plaintiff's claims arise from the exercise of defendant's right of free speech. We also agree that plaintiff failed to establish a probability of success on the merits of his defamation claim. Thus, the trial court did not err in granting defendant's motion to strike plaintiff's complaint.
FACTUAL AND PROCEDURAL BACKGROUND
The record*fn2 indicates plaintiff and appellant Darren D. Chaker had a brief romantic relationship with Nicole Mateo (Nicole), who resides in Texas. During the relationship, Nicole became pregnant and delivered Chaker's child. The record also indicates that following the birth of the child, Chaker and Nicole engaged in a contentious paternity and child support dispute in the Texas courts.
In 2010 a series of derogatory statements about Chaker, and his forensics business, appeared on an Internet Web site where members of the public may comment on the reliability and honesty of various providers of goods and services and on another social networking Web site which provided an open forum for members of the public to comment on a variety of subjects. The following are statements which refer to Chaker and appeared on one of the sites: "You should be scared. This guy is a criminal and a deadbeat dad. As you can see, I am the child's grandma so I know. If you should eve [sic] come across this person, be very careful. He may be taking steroids so who knows what could happen." "I would be very careful dealing with this guy. He uses people, is into illegal activities, etc. I wouldn't let him into my house if I wanted to keep my possessions or my sanity." Chaker attributes both of these statements, as well as others which accuse him of fraud, deceit and picking up street walkers and homeless drug addicts, to defendant and respondent Wendy Mateo (Wendy), Nicole's mother and the grandmother of his child. The Internet Web sites contained other derogatory statements apparently posted by other defendants, including Nicole.
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.,*fn3 § 425.16.) Among other matters, Wendy argued that Chaker has been previously determined to be a vexatious litigant. Wendy also submitted excerpts from a number of Web sites on which Wendy asserted Chaker had made derogatory statements about Nicole and Nicole's attorney. The trial court granted her motion and, as to her, struck the complaint. Chaker filed a timely notice of appeal.
"[S]section 425.16[*fn4 ] requires the trial court to undertake a two-step process in determining whether to grant a SLAPP motion. 'First, the court decides whether the defendant has made a threshold prima facie showing that the defendant's acts, of which the plaintiff complains, were ones taken in furtherance of the defendant's constitutional rights of petition or free speech in connection with a public issue.' [Citation.]
"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 ...