Judge William Y. Wood, Case Number: 37-2024-00005877-CU-HR-NC, Date: 2024-06-07 Tentative Ruling

Judge: William Y. Wood, Case: 37-2024-00005877-CU-HR-NC, Date: 2024-06-07 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - June 06, 2024

06/07/2024 01:30:00 PM N-29 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:William Y Wood

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Civil - Unlimited Harassment SLAPP / SLAPPback Motion Hearing 37-2024-00005877-CU-HR-NC BARKLEY VS FAHIM [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Respondent Zohra Fahim's special motion to strike (ROA # 26) is denied.

Respondent's request for judicial notice dated April 29, 2024 (ROA # 26) containing four Wikipedia searches (KFMB-TV, KNSD, KGTV and The San Diego Union Tribune) is denied. See In re Marriage of LaMoure (2011) 198 Cal.App.4th 807, 826 ['We do not consider Wikipedia a sufficiently reliable source.'].

Petitioner's evidentiary objections (ROA # 57) are overruled.

On February 8, 2024, Petitioner Debra Lynn Barkley filed a Request for Civil Harassment Restraining Order. ROA #1. The allegations contained in the CHRO are as follows: Given the nature of Zohra Fahim's actions, which have not only targeted me but also those closely associated with me, it is imperative that they receive protection as well. Fahim's repeated and targeted harassment has created an environment of fear and intimidation for my husband and employees. Their interactions with Fahim have involved aggressive confrontations, false accusations of animal abuse, and unwanted surveillance. This has led to a significant toll on their mental well-being and sense of security.

The continuous nature of these interactions and the escalation to involve local news and authorities illustrate a persistent threat to their safety and peace of mind.

...

The relationship between the petitioner, Debra Barkley, and the respondent, Zohra Fahim, is characterized by unwanted and non-consensual interactions. Fahim, an animal rights activist, has engaged in a persistent pattern of harassment towards Barkley, involving trespassing, surveillance, and defamation. This adversarial relationship stems from Fahim's allegations against Barkley's treatment of animals, leading to repeated confrontations and accusations without any personal or professional relationship to justify contact.

Request for Civil Harassment Restraining Order (CHRO) (ROA # 1), Attachments 3b and 4.

Petitioner attached a Statement in Support of the CHRO. ROA # 1, Attachment 7a(3). In that Statement, Petitioner has broken down her request into four categories (unwanted contact, fear of harm, stalking incidents, and emotional distress) and identifies six exhibits as evidence to support her request. Id. Petitioner requests an order restraining the Respondent from coming within 200 feet of Petitioner, her Calendar No.: Event ID: TENTATIVE RULINGS

3128265 CASE NUMBER: CASE TITLE: BARKLEY VS FAHIM [IMAGED] 37-2024-00005877-CU-HR-NC husband and employees and to prevent 'any form of communication or contact, including indirect contact through third parties or social media platforms.' Id. at ¶ 5. Petitioner alleges that Respondent is making false accusations of animal abuse on social media and by 'publicizing [with local news channels] a completely false, hurtful and damaging narrative that [she is] cruel to animals.' Id. at pp. 1-2.

Respondent moves to strike the entirety of the CHRO on the basis that the death of the second horse (Munchkin) triggered CBS' television coverage which prompted the filing of the restraining order and the CHRO was filed in retaliation for Respondent filing a complaint with the Department of Animal Services.

Motion to SLAPP (ROA # 26), 5:12-15; 6:20-23, 7:19-26. Petitioner opposes the motion. ROA # 57.

A two-step analysis is required when the court is requested to rule on a special motion to strike under the anti-SLAPP statutory framework. Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67. To make a showing under the first prong, respondent need only establish a prima facie case that its alleged actions fell into one of the categories listed in section 425.16(e). Flatley v. Mauro (2006) 39 Cal.4th 299, 314. If respondent makes such a showing, the burden shifts to the petitioner to 'demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the [petitioner] is credited.' Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548.

In the first step, the respondent must show that the conduct underlying the petitioner's cause of action or portions of the cause of action that are asserted as grounds for relief-arises from the respondent's constitutional rights of free speech or petition. Civ. Code § 425.16(b)(1); Baral v. Schnitt (2016) 1 Cal. 5th 376, 395; Bonni v. St. Joseph Health System (2021) 11 Cal. 5th 995, 1009–1012 [where a single cause of action alleges multiple factual bases, following Baral, a court should analyze each claim for relief-each act or set of acts supplying a basis for relief-to determine whether the acts are protected and, if so, whether the claim they give rise to has the requisite degree of merit to survive the motion.].

Acts subject to CCP § 425.16 (e) include: '(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, 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.' § 425.16 (e)(1)-(4).

In this case, after careful review of the pleadings and focusing on the allegations of the challenged causes of action, the Court finds that the activity that gives rise to the asserted liability relates to: (1) aggressive confrontations; (2) trespassing; (3) surveillance; and (4) defamation (false accusations of animal abuse).

Turning first to the liability as it relates to aggressive confrontation, trespassing and surveillance, Respondent has failed to demonstrate that the conduct underlying the Petitioner's CHRO relating to these claims arises from the defendants' constitutional rights of free speech or petition. The Court rejects Respondent's argument that the CHRO was filed in retaliation to CBS' television coverage on the death of Munchkin or in retaliation for Respondent filing a complaint with the Department of Animal Services because Petitioner has not asserted such allegations in the CHRO. A requirement that courts confronted with anti-SLAPP motions inquire into the plaintiff's subjective intent would commit scarce judicial resources to an inquiry inimical to the legislative purpose that unjustified special motions to strike be terminated at an early stage. Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 65.

'Imposing a requirement of establishing bad faith or ulterior motive adds a needless burden to SLAPP targets seeking relief, and destroys the relatively value-free nature of existing anti-SLAPP structures under which actions become suspect because of the circumstances of their arising and the relief sought, without need to litigate motive.' Braun, Increasing SLAPP Protection: Unburdening the Right of Petition in California (1999) 32 U.C. Davis L.Rev. 965, 969, fn. 9.

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3128265 CASE NUMBER: CASE TITLE: BARKLEY VS FAHIM [IMAGED] 37-2024-00005877-CU-HR-NC Turning to the defamation claim, the basis for relief relating to the defamation claim is that Respondent is making false accusations of animal abuse on social media and by 'publicizing [with local news channels] a completely false, hurtful and damaging narrative that [she is] cruel to animals.' ROA # 1, Attachment 7a(3), pp. 1-2.

The social media posts have been attached to the Statement at Exhibit 6 and consist of two posts made by the Los Angeles Alliance for Animals regarding allegations of 'criminal animal cruelty' at Petitioner's ranch and allegations that County Animal Services did not euthanize a horse on Petitioner's property.

Id. at Exhibit 6.

The Court finds that the social media posts made on Facebook regarding allegations of animal cruelty are protected under CCP § 425.16(e)(3). See Cross v. Facebook, Inc. (2017) 14 Cal.App.5th 190, 199 ['It cannot be disputed that Facebook's website and the Facebook pages at issue are 'public forums,' as they are accessible to anyone who consents to Facebook's Terms.']; see also Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1246 [Prevention of animal suffering is an issue of public concern.].

The Court finds that the allegations relating to statements that Petitioner is cruel to animals made by or to a local news channel are protected under CCP § 425.16(e)(3). Computerexpress, Inc. v. Lee Jackson (2001) 93 Cal.App.4t h 993, 1006 [ '[A] widely disseminated television broadcast' is 'undoubtedly a public forum' subject to the anti-SLAAP statute.]; see also Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc., supra, 129 Cal.App.4th at 1246 [Prevention of animal suffering is an issue of public concern.].

Thus, the Court finds that the activity giving rise to the defamation claim arises from protected activity and the burden shifts to the Petitioner to establish the probability of prevailing on the merits of her claim that the statements made on Facebook and to a local news channel were false and defamatory.

To establish a probability of prevailing, the Petitioner 'must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.' Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548. For purposes of this inquiry, 'the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim.' Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821. In making this assessment it is 'the court's responsibility ... to accept as true the evidence favorable to the plaintiff....' HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.

The Petitioner need only establish that his or her claim has 'minimal merit' (Navellier v. Sletten (2002) 29 Cal.4th 82, 89) to avoid being stricken as a SLAPP. See Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 738 ['the anti-SLAPP statute requires only 'a minimum level of legal sufficiency and triability' [citation].'] In this case, Petitioner has met her burden. See Barkley Decl. (ROA # 57), ¶ 5 ['I take care of my horses...']; See also CHRO (ROA # 1), Attachment 7a(3), ¶ 2 ['I love my horses and rather than parting with them all, I provide a good home for them with an abundance of feed, as well as regular farrier care and veterinarian care for each and every horse and animal even in their later years, until the time of their passing away.'].

In conclusion, the Court denies Respondent's special motion to strike the activity that gives rise to the asserted liability as it relates to aggressive confrontations, trespassing and surveillance because Respondent did not meet her initial burden of demonstrating that the allegations set forth in these claims arise from the Respondent's free speech or petition activity entitled to the protection of CCP § 425.16(e).

Thus, the burden does not shift to the Respondent to demonstrate a probability of success on the merits.

Calendar No.: Event ID: TENTATIVE RULINGS

3128265 CASE NUMBER: CASE TITLE: BARKLEY VS FAHIM [IMAGED] 37-2024-00005877-CU-HR-NC The Court denies Respondent's special motion to strike the allegations that give rise to the asserted liability relating to defamation on the basis that, while Respondent has met her initial burden of demonstrating that the conduct alleged arose from the Respondent's free speech or petition activity and is thus entitled to the protection of CCP § 425.16(e), Petitioner has demonstrated a probability of success on the merits of her defamation claim.

For these reasons, the special motion to strike is denied.

This minute order constitutes the Court's order. No party is required to submit a proposed order after hearing.

This is the tentative ruling for an appearance (in person or remote) hearing at 1:30 p.m. on Friday, June 7, 2024. If no party appears at the hearing, this tentative ruling will become the order of the Court as of June 7, 2024. If the parties are satisfied with the Court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the Court and each other of their intention not to appear, though this notice is not required.

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3128265