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普法:刘牧野不公平竞争与诽谤案上诉法院裁决 (Anti-SLAPP)

热度 2已有 605 次阅读2018-11-16 02:07 |个人分类:法律|系统分类:法律

最近美国总统川普在对 Stormy Daniels 案中赢了一场 Anti-SLAPP 动议,据报道 Daniels 的 律师见势不妙准备在 Cohen 案中开溜。可见这个 Anti-SLAPP 是常用的法律程序。刘牧野在第一次回应我给夜夜城要求保留证据的邮件时似乎就提到了。 但是这个 Anti-SLAPP 其实相当复杂,一知半解往往是有害的。实战出真知,海外华人网络涌现了一两个相对懂法的。客观的说句实话,翰山学习能力还行,且具备一定 的逻辑思维能力,至少能够进行 coherent 的辩论, Anti-SLAPP 相关法律可能比某些有执照的还搞得清楚些。

就刘牧野 anti-SLAPP 上诉,我提出了反对(反对书见文末附件),并前往参加了口头辩论。加州上诉法院的分析与裁决值得学习。

其分析内容如下:

YUE v. TRIGMAX SOLUTIONS LLC



No. A151067.

DONGXIAO YUE, Plaintiff and Respondent, v. TRIGMAX SOLUTIONS LLC ET AL., Defendants and Appellants.

Court of Appeals of California, First District, Division Five.


。。。。。

DISCUSSION

Lawsuits against persons sued for exercising their constitutional right to free speech "in connection with a public issue shall be subject to a special motion to strike, unless . . . the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1).) We review de novo a trial court order on an anti-SLAPP motion. (Oasis West Realty, LLC v. Goldman(2011) 51 Cal.4th 811, 820.) Where the trial court has denied an anti-SLAPP motion, we first determine whether the defendant "demonstrate[d] that the act or acts of which the plaintiff complains were taken `in furtherance of the [defendants'] right of petition or free speech . . . in connection with a public issue,' as defined in the statute." (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)


Defendants argue their comments were made in a public forum in connection with an issue of public interest: the Yang litigation. (§ 425.16, subd. (e)(3).) Assuming Yeyeclub constitutes a "public forum," this contention fails because defendants have not demonstrated their statements were made "in connection with an issue of public interest." Courts broadly construe the phrase "public interest" (see Cross v. Cooper (2011) 197 Cal.App.4th 357, 372) but defendants present no coherent argument, no persuasive authority, and no evidence supporting their contention that the Yang litigation was an issue of public interest. (See Abuemeira v. Stephens(2016) 246 Cal.App.4th 1291, 1298 [no evidence establishing "the dispute was anything other than a private controversy"].) Defendants' statements arose out of a private business dispute between competing Web sites. Defendants' anti-SLAPP motion supports this conclusion: in their motion, defendants characterized the dispute as arising out of their refusal to modify their "business practices" for Yue. "[A] defendant in an ordinary private dispute cannot take advantage of the anti-SLAPP statute simply because the complaint contains some references to speech . . . by the defendant." (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188.) We conclude defendants' statements did not "concern a person in the public eye, conduct that could directly affect large numbers of people beyond the participants, or a topic of widespread public interest." (D.C. v. R.R. (2010) 182 Cal.App.4th 1190, 1230.)2


This case does not, as defendants claim, come within "section 425.16, subdivision (e)(2), which includes statements made in connection with civil court litigation." (Seltzer v. Barnes (2010) 182 Cal.App.4th 953, 962.) A "`statement is "in connection with" litigation under section 425.16, subdivision (e)(2), if it relates to the substantive issues in the litigation and is directed to persons having some interest in the litigation.'" (Ibid.) There is no evidence defendants' statements were directed to individuals with an interest in the Yang litigation. Defendants' reliance on Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106 is unavailing. Briggs held "a defendant moving to strike a cause of action arising from a statement made before, or in connection with an issue under consideration by, a legally authorized official proceeding need not separately demonstrate that the statement concerned an issue of public significance." (Id. at p. 1123.) Briggs has no application here.


Because defendants failed to make the required showing on the first step of the section 425.16 analysis, we do not reach the second step. (City of Cotati v. Cashman(2002) 29 Cal.4th 69, 80-81.) We conclude the trial court did not err by partially denying defendants' anti-SLAPP motion.

DISPOSITION

The order partially denying defendants' anti-SLAPP motion is affirmed. Yue is awarded costs on appeal. (Cal. Rules of Court, rule 8.278(a).)

Simons, J. and Needham, J., concurs.

FootNotes


1. Undesignated statutory references are to the Code of Civil Procedure. We liberally construe the notice of appeal to include both defendants. "[N]o prejudice results from our liberal construction. The parties have argued the merits as to both appellants." (Toal v. Tardif (2009) 178 Cal.App.4th 1208, 1216-1217.)
2. We reject defendants' claim that the court erred "in its analysis of the `public eye' requirement." Defendants'"remaining arguments have been considered and merit no further discussion." (Lyons v. Santa Barbara County Sheriff's Office(2014) 231 Cal.App.4th 1499, 1506.)

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