Barkley V Fahim Ca41

Key Facts

Issues

• Whether the nonmoving party (Barkley) demonstrated that her defamation claim has minimal merit under prong two of the anti-SLAPP analysis. The court must determine if Barkley presented competent admissible evidence showing her claim is legally sufficient and factually substantiated, rather than relying solely on her complaint.
• The trial court's ruling on the anti-SLAPP motion regarding defamation claims. The trial court found Barkley showed probability of success on defamation, but the appellate court must determine if Barkley met her burden under prong two of the anti-SLAPP analysis.
• Whether Barkley established a legally sufficient claim of harassment based on defamation under section 527.6. The court must assess whether Barkley presented evidence that Fahim's publications 'seriously alarm, annoy, or harass' her, and whether she demonstrated a probability of prevailing on this claim.

Holdings

• The parties are to bear their own costs on appeal.
• The court affirms the trial court's denial of the anti-SLAPP motion regarding aggressive confrontations, trespassing, and surveillance. The denial of the motion regarding defamation is reversed, as Barkley failed to carry her burden in showing a probability of success regarding harassment by defamation.

Remedies

• The appellate court ordered that the parties bear their own costs on appeal, rather than awarding attorney fees to either party.
• Fahim's request for a remand regarding attorney fees was denied as unnecessary, as the results of the motion were minimal and insignificant.
• The appellate court affirmed the trial court's denial of the anti-SLAPP motion regarding aggressive confrontations, trespassing, and surveillance claims. The court reversed the trial court's ruling on the defamation claim, holding that Barkley failed to demonstrate a probability of prevailing on harassment by defamation. The parties were ordered to bear their own costs on appeal.

Legal Principles

• To establish a probability of prevailing on the second prong of anti-SLAPP analysis, a nonmoving party must demonstrate the claim is legally sufficient and factually substantiated—that is, the claim has minimal merit and the factual showing, if accepted, would be sufficient to sustain a favorable judgment. The court does not weigh plaintiff's evidence but proof must be made upon competent admissible evidence.
• Anti-SLAPP motions under California Code of Civil Procedure section 425.16 are reviewed de novo using a two-prong test: (1) whether the challenged cause of action arises from protected activity, and (2) whether the nonmoving party demonstrated the claim has minimal merit by making a prima facie factual showing sufficient to sustain judgment in its favor. The appellant bears the burden of affirmatively demonstrating error on appeal.
• Issues not raised or supported by substantive argument or citation to authority are considered waived on appeal. An appellant bears the burden of affirmatively demonstrating error even under de novo standard of review. New arguments may not be raised for the first time in an appellant's reply brief.

Precedent Name

• Ross v. Seyfarth Shaw LLP
• Guracar v. Student Loan Solutions, LLC
• High Sierra Rural Alliance v. County of Plumas
• Holden v. City of San Diego
• Cornell v. Berkeley Tennis Club
• San Diegans for Open Government v. San Diego State University Research Foundation
• Luo v. Volokh
• Bonni v. St. Joseph Health System
• Geragos v. Abelyan

Cited Statute

• Harassment statute for restraining orders
• Publication rule for court opinions
• Anti-SLAPP statute (strategic lawsuits against public participation)

Judge Name

• Irion
• Dato
• Rubin

Passage Text

• To establish a probability of prevailing, a nonmoving party must demonstrate that the claim is 'legally sufficient and factually substantiated'—that is, the claim has 'minimal merit' and the factual showing supporting it, if accepted, 'would be sufficient to sustain a favorable judgment.' The court does not weigh the plaintiff's evidence. However, the plaintiff may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.
• In sum, whether by waiver or lack of evidentiary support, Barkley has not carried her burden on the second prong of the anti-SLAPP analysis. The trial court therefore erred in denying the motion regarding the claims of harassment by defamation.
• Barkley makes no attempt to demonstrate a legally sufficient claim of harassment based on defamation. In fact, she appears to acknowledge that Fahim's publications on social media or to local news networks are constitutionally protected, which is excluded from 'course of conduct' harassment. Barkley has therefore waived any contention that she has established a probability of prevailing on the defamation aspect of her restraining order request.