Filed 2/18/14 Walsh v. Latham CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


MARK WALSH,
         Plaintiff and Respondent,
                                                                     A136016
v.
GARY LATHAM et al.,                                                  (Sonoma County
                                                                     Super. Ct. No. SCV 251041)
         Defendants and Appellants.


         Defendants Gary Latham and Rose Cruz-Latham (together, the Lathams) are
alleged to have defamed plaintiff Mark Walsh by claiming, in Internet posts and a letter
to their neighbors, that Walsh had twice made videotapes of the Lathams’ teenage
daughter. Cruz-Latham combined the accusations with repeated characterizations of
Walsh as a sexual deviant. The Lathams moved to strike Walsh’s complaint under Code
of Civil Procedure section 425.16, the anti-SLAPP statute,1 arguing their statements
concerned a matter of public interest. While the trial court agreed that the statements
concerned a matter of public interest, it denied the motion because it concluded Walsh
had demonstrated a probability of prevailing on his defamation claims. We affirm solely



         1
         SLAPP is an acronym for “strategic lawsuit against public participation.”
(Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57.) In 1992, the
Legislature, finding there had 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” (Code Civ. Proc., § 425.16, subd. (a)), enacted Code of Civil
Procedure section 425.16 to provide a remedy against such lawsuits.
on the basis of Walsh’s demonstration, in the limited manner required by the anti-SLAPP
statute, of a probability of prevailing.
                                    I. BACKGROUND
       Walsh sued his next-door neighbors, the Lathams, in January 2012, asserting
claims of libel and slander per se, negligence, and intentional infliction of emotional
distress. The complaint alleged Cruz-Latham had made several Facebook posts and the
Lathams had circulated a neighborhood letter, both falsely claiming Walsh had
videotaped the Lathams’ teenage daughter for purposes of his sexual gratification.
       The Lathams moved to strike the complaint under the anti-SLAPP statute. The
motion argued their conduct was protected speech on a matter of public interest because
Walsh’s conduct “constituted a potential threat to the safety and privacy of children in the
neighborhood.”
       The motion was supported by a declaration from Cruz-Latham, stating that in
early 2011 her 15-year-old daughter, N., said she had seen Walsh videotaping her from a
second-story room in his home while she was walking outside. Sometime later, Cruz-
Latham saw Walsh pointing a video camera at her while she was in her daughter’s
bedroom. At the time, Walsh was in the same second-story room of his home. Over a
period of one or two days, Cruz-Latham saw the video camera in the window of the same
room, pointed at her daughter’s bedroom. On the basis of these incidents, Cruz-Latham
became “worried about the safety and privacy of children and teenagers in the
neighborhood.” She posted “a number” of messages on her Facebook page for the
purpose of alerting her neighbors to “potential behaviors about which they might be
concerned.”
       The Facebook posts, attached to Cruz-Latham’s declaration, began with the
following February 17 post: “Ok my FB friends how do I handle this one?? Our next
door neighbor was video taping [N.] from their upstairs window!!! So not ok!!! What
would you do??” Posts on March 3 contained two photographs purporting to show a
window in the Walsh home that looked into N.’s bedroom and a video camera on the
window sill pointing into the bedroom. It claimed that the neighbor is “video recording


                                             2
[N.] again.”2 (Italics added.) Subsequent posts on May 13 and 16 repeated that the
neighbor had videotaped N. In the course of the various posts, Cruz-Latham
characterized Walsh as a “stalker[],” “SICKO,” “perv,” and a “fat ass loser[]” and
associated these characterizations with his alleged videotaping of N.3
       The declaration also attached copies of a letter sent by the Lathams to four
unnamed neighbors. After referring to long-standing disputes between the Lathams and
Walshes, the letter states: “To video tape our daughter for whatever reason was the final
straw for us. If it was your children I know you would also be justly outraged.” The
letter repeated the claim Walsh had pointed a video camera into N.’s bedroom.
       A declaration by Gary Latham described a confrontation with Walsh, during
which Latham accused Walsh of videotaping his daughter. Walsh reportedly responded:
“You’re damn right I was videotaping your daughter. That doesn’t make me a ‘perv.’ ”
       Walsh’s opposition argued the Facebook posts did not concern a matter of public
interest, since they were not generally accessible to neighbors and were intended to
further the Lathams’ position in a boundary dispute with Walsh, and Walsh was likely to
prevail on his claims of defamation. The opposition was accompanied by declarations of
the Walshes’ neighbors confirming the Lathams’ sending of the letter and Cruz-Latham’s
Facebook posts. Two of the neighbors stated they were able to infer from the Facebook
posts that Walsh was the subject, although his name was not mentioned.
       Walsh submitted a declaration stating the Lathams had lived next-door to his
house for eight years. For some time the neighbors got on well, but in early 2011, a
dispute developed over a common property line. At the time of the alleged videotaping
incidents, in February and March 2011, Walsh’s wife was suffering from a serious health
problem. During that time, Walsh took a leave of absence from his job and spent all day
       2
         The posts never referred to Walsh by name, but there is no argument that he was
not the person to whom Cruz-Latham was referring.
       3
         For example, in apparent response to posts by others, Cruz-Latham wrote:
“Thank you for your support!! Placing it on FB is something I CAN do and get the word
out that we have a PERV in the neighborhood!! It is NOT ok to set up a video camera
and point it to my 15 yr olds bedroom!!!”


                                             3
with her at the hospital, coming home “only to shower and sleep.” It was not until May
that Walsh learned about the Lathams’ statements.
       Walsh denied ever having taken any video images of the Lathams or their
daughter. He also denied the occurrence of the conversation recounted in Latham’s
declaration. He claimed the video camera depicted in the photograph posted by Cruz-
Latham had not been used in five years and explained he had moved it from a shelf to the
window sill in early March while searching for a telephone number. Shortly after, he
placed it back on the shelf. Walsh claimed N.’s bedroom window is located in the back
of the Lathams’ home and is not visible from the side of his house where the video
camera was located on the window sill.
       In a written ruling, the trial court held the Lathams had made a “threshold
showing” that their statements arose from protected activity. It denied the motion,
however, because it found that Walsh had demonstrated a sufficient probability of
prevailing on his claims.
                                     II. DISCUSSION
       The Lathams repeat in this court the arguments they made in the trial court. We
find it unnecessary to reach the issue of “public interest” because we agree with the trial
court that Walsh satisfied the anti-SLAPP standard for demonstrating a probability of
success on his claims.
       “[Code of Civil Procedure s]ection 425.16, subdivision (b)(1), provides: ‘A cause
of action against a person arising from any act of that person in furtherance of the
person’s right of petition or free speech under the United States Constitution or the
California Constitution in connection with a public issue shall be subject to a special
motion to strike, unless the court determines that the plaintiff has established that there is
a probability that the plaintiff will prevail on the claim.’ The analysis of an anti-SLAPP
motion thus involves two steps. ‘First, the court decides whether the defendant has made
a threshold showing that the challenged cause of action is one ‘arising from’ protected
activity. [Citation.] If the court finds such a showing has been made, it then must
consider whether the plaintiff has demonstrated a probability of prevailing on the claim.’


                                              4
[Citation.] ‘Only a cause of action that satisfies both prongs of the anti-SLAPP statute—
i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a
SLAPP, subject to being stricken under the statute.’ ” (Oasis West Realty, LLC v.
Goldman (2011) 51 Cal.4th 811, 819–820 (Oasis West).)
       While the ordinary practice is to address the issues of public interest and probable
merit in sequence, a court may jump directly to the issue of probability of prevailing in
appropriate circumstances. (Oasis West, supra, 51 Cal.4th at p. 820.)
       “To satisfy the second prong, ‘a plaintiff responding to an anti-SLAPP motion
must “ ‘state[] and substantiate[] a legally sufficient claim.’ ” [Citation.] Put another
way, the plaintiff “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.” ’ [Citation.] ‘We consider “the
pleadings, and supporting and opposing affidavits . . . upon which the liability or defense
is based.” [Citation.] However, we neither “weigh credibility [nor] compare the weight
of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff
[citation] and evaluate the defendant’s evidence only to determine if it has defeated that
submitted by the plaintiff as a matter of law.” ’ [Citation.] If the plaintiff ‘can show a
probability of prevailing on any part of its claim, the cause of action is not meritless’ and
will not be stricken; ‘once a plaintiff shows a probability of prevailing on any part of its
claim, the plaintiff has established that its cause of action has some merit and the entire
cause of action stands.’ ” (Oasis West, supra, 51 Cal.4th at p. 820.)
       We review de novo an order granting or denying a motion to strike under the anti-
SLAPP statute. (Oasis West, supra, 51 Cal.4th at p. 820.)
A. Fact v. Opinion
       The Lathams contend Walsh cannot prevail on his claims of defamation because
their statements constituted nonactionable opinions, rather than provably false statements
of fact.
       “ ‘The elements of a defamation claim are (1) a publication that is (2) false,
(3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes


                                              5
special damage. . . .’ [Citation.] [¶] ‘ “The sine qua non of recovery for defamation . . . is
the existence of falsehood.” [Citation.] Because the statement must contain a provable
falsehood, courts distinguish between statements of fact and statements of opinion for
purposes of defamation liability. . . .’ [Citation.] [¶] ‘That does not mean that statements
of opinion enjoy blanket protection. [Citation.] On the contrary, where an expression of
opinion implies a false assertion of fact, the opinion can constitute actionable defamation.
[Citation.] The critical question is not whether a statement is fact or opinion, but
“ ‘whether a reasonable fact finder could conclude the published statement declares or
implies a provably false assertion of fact.’ ” ’ [Citation.] [¶] ‘To determine whether a
statement is actionable fact or nonactionable opinion, courts use a totality of the
circumstances test of whether the statement in question communicates or implies a
provably false statement of fact. . . .’ [Citation.] [¶] ‘The “crucial question of whether
challenged statements convey the requisite factual imputation is ordinarily a question of
law for the court. [Citation.]” [Citation.] “Only once the court has determined that a
statement is reasonably susceptible to such a defamatory interpretation does it become a
question for the trier of fact whether or not it was so understood. [Citations.]” [Citation.]
The question is “ ‘whether a reasonable fact finder could conclude the published
statement declares or implies a provably false assertion of fact. . . .’ ” ’ ” (Sanders v.
Walsh (2013) 219 Cal.App.4th 855, 862–863 (Sanders).)
       In the allegedly defamatory posts, Cruz-Latham repeatedly characterized Walsh as
a “perv” or “pervert,” a “SICKO,” “not normal,” and a “stalker[],” all terms implying
sexual deviance. These characterizations might qualify as nonactionable opinion if they
had been stated in the abstract. Throughout the Facebook posts, however, the
characterizations were associated with descriptions of concrete behavior that, Cruz-
Latham’s posts made clear, were the basis for her charges of sexual deviance. In these
posts, Cruz-Latham charged that on two occasions Walsh had videotaped N. from an
upstairs window in his home. She repeatedly referred back to these charges in referring
to Walsh a “perv” and other labels implying sexual deviance. A comment from May 15



                                               6
makes an express connection between Walsh’s alleged videotaping and her accusations
of sexual deviance: “Only a PERV would video tape a teenage girl from his window.”
       The unmistakable implication is that Cruz-Latham based her opinion regarding
Walsh’s character on the fact that he had, on two occasions, videotaped her daughter
from a window of his house that looks into the daughter’s bedroom window. A
reasonable finder of fact could readily conclude that whether Walsh had recorded
videotapes of N. in this manner on two occasions is a provably false assertion of fact.
(Sanders, supra, 219 Cal.App.4th at p. 862.) Accordingly, Cruz-Latham’s statements are
actionable to the extent these assertions of fact are false. (See, e.g., Franklin v. Dynamic
Details, Inc. (2004) 116 Cal.App.4th 375, 385–387 (Franklin); see similarly Bently
Reserve LP v. Papaliolios (2013) 218 Cal.App.4th 418, 428 (Bently Reserve) [where
name-calling is combined with statements of fact about the plaintiff, the comments are
actionable].)
       The Lathams argue their communications were mere opinions because they did
not expressly state, but only implied, that Walsh was making the videotapes for sexual
gratification, analogizing their circumstances to those in Terry v. Davis Community
Church (2005) 131 Cal.App.4th 1534 (Terry) and Franklin. Even assuming the
statements would not be actionable if the allegation of sexual gratification was merely
implicit, a debatable claim, the premise of the argument is not correct. In addition to the
multitude of strongly implicit charges that the tapes were made for Walsh’s sexual
gratification, Cruz-Latham expressly charged Walsh had been videotaping for purposes
of sexual gratification when she posted, “Only a PERV would video tape a teenage girl
from his window.” Said differently, the videotaping could only have been done for a
sexually deviant purpose.
       Terry and Franklin are of no help to the Lathams. In Terry, an anti-SLAPP case
on which they place primary reliance, two church leaders, a husband and wife, had
engaged in an improper relationship with a young church member. (Terry, supra,
131 Cal.App.4th at p. 1539.) In an investigative report based largely on e-mails
exchanged between the husband and the child, the church concluded the couple’s


                                             7
relationship with the child was inappropriate and characterized the e-mails as evidencing
increasing physical contact and intimacy between the husband and the child. (Id. at
pp. 1540–1542.) In suing for defamation, the plaintiffs contended the report had falsely
accused the husband of having a sexual relationship with the child. The court found the
plaintiffs had failed to show a likelihood of success on their claim of defamation because
the report did not imply any provably false assertions of fact. (Id. at p. 1551.) As the
court noted, the report did not actually accuse the husband of a sexual relationship.
Rather, it stated the relationship was “inappropriate,” an opinion that was based on the
content of the husband’s provably true e-mails, which were quoted in the report. Because
the report did not suggest its conclusion was based on any other, undisclosed facts, the
opinion was not actionable. (Id. at p. 1553.) Unlike the opinion of the defendant in
Terry, the Lathams’ claim of sexual deviance was based not on uncontroverted facts but
on an allegation of videotaping that Walsh contends is false. It is therefore actionable.
Franklin is not significantly different.4
       Cruz-Latham argues her Facebook posts should not be regarded as actionable
because they were published on an Internet Web site. While we realize the two cases
cited by the Lathams, Summit Bank v. Rogers (2012) 206 Cal.App.4th 669, 697–698, and
Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154, 1162–1163, can be read to suggest that
Internet communications are judged by a more relaxed defamation standard, other cases
have rejected that suggestion. (See, e.g., Sanders, supra, 219 Cal.App.4th at pp. 864–
865.) In Bently Reserve, we analyzed the law relating to defamation over the Internet and
concluded, “while Krinsky, Summit Bank, and Chaker [v. Mateo (2012) 209 Cal.App.4th


       4
         In Franklin, a case of commercial defamation, three e-mails accused the plaintiff
of business torts. The first two were found nonactionable because the writer’s charge of
unlawful behavior, an opinion, was based on statements in government Web sites whose
“existence, content, and layout were not in dispute in any material way,” and not on any
other implicit, provably false conduct. (Franklin, supra, 116 Cal.App.4th at pp. 378,
388–389.) The third e-mail was found nonactionable both because it made true
statements and contained an opinion “too vague to be actionable.” (Id. at p. 390.) For
the reasons discussed above, the Lathams’ communications were materially different.


                                             8
1138] allow courts to dispense quickly with defamation claims arising from true rants and
raves, they do not preclude the courts from taking serious Internet speech seriously.
Internet posts where the ‘tone and content is serious,’ where the poster represents himself
as ‘unbiased’ and ‘having specialized knowledge,’ or where the poster claims his posts
are ‘Research Reports’ or ‘bulletins’ or ‘alerts,’ may indeed be reasonably perceived as
containing actionable assertions of fact. [Citation.] And while ‘generalized’ comments
on the Internet that ‘lack any specificity as to the time or place of’ alleged conduct may
be a ‘further signal to the reader there is no factual basis for the accusations,’ specifics, if
given, may signal the opposite and render an Internet posting actionable.” (Bently
Reserve, supra, 218 Cal.App.4th at p. 431.) Because we found the defendant’s posts in
Bently Reserve to “contain[] statements that could reasonably be understood as conveying
facts,” we rejected their characterization as nonactionable Internet speech. (Id. at p. 433.)
Cruz-Latham’s posts on Facebook were similarly meant to be taken seriously and, as
discussed above, were based on very specific allegations of conduct. Their
communication via the Internet does not justify the application of a different defamation
standard.
B. Probability of Prevailing
       For purposes of the anti-SLAPP statute, in evaluating Walsh’s demonstration of a
probability of prevailing on his claims we must accept as true the evidence favorable to
him without regard to its relative credibility or weight. We consider the Lathams’
evidence only to determine whether it has defeated Walsh’s evidence as a matter of law.
(Oasis West, supra, 51 Cal.4th at p. 820.)
       Regarding the libel cause of action, Walsh’s declaration stated he had never taken
any video images of any member of the Latham family and denied the conversation
recounted by Latham. He further stated the video camera cited by Cruz-Latham had not
been used in five years and had been placed on the window sill inadvertently. Finally, he
said the window from which he allegedly pointed the video camera at Cruz-Latham does
not face the window of N.’s bedroom, making it impossible for him to have videotaped
N. while she was in her bedroom, as claimed by Cruz-Latham in her Facebook posts.


                                               9
These statements make a prima facie case for the falsity of the Lathams’ claim that Walsh
had twice videotaped their daughter.
       The Lathams contend that because Walsh does not deny ever having pointed a
video camera at N., as opposed to actually recording her, he has not contradicted their
evidence. In so doing, they confuse their current account of events with their allegedly
defamatory statements. It is the latter, which constitute the basis for Walsh’s claims of
defamation, that must be proven false. Neither in the Facebook posts nor in the letter to
neighbors did the Lathams state that Walsh merely pointed a video camera at N. Rather,
they claimed he “video tap[ed]” her, or “record[ed]” her on two separate occasions. The
claim of actual taping is significant, for it implies he was recording the scene for later
viewing, a practice consistent with Cruz-Latham’s claim of sexual deviance. By flatly
stating he had never videotaped any of the Lathams, Walsh directly contradicted the
provably false assertions of fact in the Lathams’ allegedly defamatory statements and
stated a prima facie case of success on the issue of falsity.5
       The Lathams argue Walsh did not present any evidence to support his claim of
slander. As Walsh points out, however, Cruz-Latham herself stated in a post that she had
“talk[ed] to a reporter at the Press Democrat” about the alleged incidents. While it is true
that, as the Lathams argue, Cruz-Latham did not specify the content of her conversation
with the reporter, it may be inferred from the context that it was identical to the content of
her posts. This is sufficient for purposes of the anti-SLAPP statute.
       The Lathams argue the remaining two causes of action must fail because the claim
of libel fails. (E.g., Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 34.) Because we find a
sufficient probability of prevailing on the defamation causes of action, the argument
provides no basis for dismissal of the claims of negligence and intentional infliction of
emotional distress.

       5
        The Lathams argue Walsh presented no “admissible evidence” that he did not
engage in the conduct alleged by the Lathams. His own testimony that he never
videotaped any of them would plainly be admissible and directly contradicts the
Lathams’ accusations.


                                              10
                                  III. DISPOSITION
      The judgment of the trial court is affirmed.




                                                _________________________
                                                Margulies, Acting P.J.


We concur:


_________________________
Banke, J.


_________________________
Becton, J.*




*
 Judge of the Contra Costa County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.



                                           11
