Thursday, September 3, 2015
C.A Orders New Hearing on Anti-SLAPP Motion in Election Spat
By KENNETH OFGANG, Staff Writer
A political activist’s use of an adversary’s name to draw Internet traffic to sites favoring candidates whom the activist supported constituted protected activity within the meaning of the anti-SLAPP statute, the Fourth District Court of Appeal has ruled.
Div. Three Tuesday certified for publication its Aug. 5 opinion reversing an Orange Superior Court judge’s denial of an anti-SLAPP motion brought by Chris Korpi. On remand, the court said, the motion can still be denied if the plaintiff, Julie Collier, shows a likelihood of prevailing on the merits of her lawsuit.
Korpi, 53, died of a heart attack Nov. 8 of last year, while his appeal was pending. His executor, Patrick Harris, is now the defendant in the case.
Korpi’s death came three days after Collier lost her bid to unseat an incumbent member of the Capistrano Unified School District’s board. The successful incumbent was supported by Children First, an advocacy group with which Korpi was associated.
Collier was the organizer of Parents Advocate League, another advocacy group. Although the school elections are nonpartisan, as the two groups profess to be, Collier and like-minded school board candidates have been endorsed by the Republican Party and a number of elected Republican officials, as well as by charter school advocates, while Children First is closely allied with the local teacher’s union.
Last November’s election strengthened the Children First-backed majority on the district’s board. The lawsuit, however, stems from Korpi’s activities in connection with the 2012 election.
Korpi said he registered the domain names www.juliecollier.com and www.parentsadvocateleague.com in anticipation of Collier becoming a candidate. His plan, he said, was to use the names to set up websites discussing Collier and her relationship with PAL and why she should not be elected.
When Collier decided not to run, Korpi said, he decided to use the domain names to redirect web traffic to the Children First site and to that of Gary Pritchard, a board member backed by Children First.
Collier said she learned of the redirections a few weeks before the election and retained an attorney to investigate. The attorney, by contacting Domain Names by Proxy, LLC, learned that Korpi was the registrant.
Korpi claimed that he did not intent mislead anyone, but that he intended to use the domain names to attract attention from potential supporters of Collier and PAL and persuade them to support his favored candidates instead. But he stopped redirecting traffic and cancelled the registrations after being contacted by a reporter around the time Collier’s lawyer learned of his involvement.
Collier claimed that Korpi’s actions constituted invasion of privacy, false impersonation under the Penal Code, and misuse of the domain names under the Business and Professions Code. In moving to strike under the anti-SLAPP law, Korpi contended his conduct was protected by the First Amendment.
Superior Court Judge John C. Gastelum ruled that the complaint did not arise from protected speech because Collier was complaining not about the content, but about the defendant’s use of her name to disseminate it.
But Justice Richard Aronson, writing for the Court of Appeal, said Korpi was acting “in furtherance of” his free speech rights, within the meaning of the anti-SLAPP law, even if his conduct wasn’t privileged.
The justice cited Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, in which the court held that a doctor who was secretly recorded in connection with a television news report about alleged improper prescription of controlled substances was entitled to proceed with his suit against the owners of the station. The court held that because the taping was part of the station’s newsgathering activities, it was in furtherance of the station’s First Amendment rights, but that the evidence supported a conclusion that the doctor was likely to prevail on his claim that the taping violated a state statute, even though the broadcast was constitutionally protected.
The justice also cited Hunter v. CBS Broadcasting, Inc. (2013) 221 Cal.App.4th 1510, which held that a complaint accusing a broadcaster of discriminating in favor of attractive young women in its selection of weather anchors was subject to an anti-SLAPP motion because it arose from the protected activity of choosing on-air personnel. The defendant’s conduct, not its motive, determines the outcome at the first step of the anti-SLAPP inquiry, the court explained, even though improper motive may result in a finding that the plaintiff is likely to prevail, and thus in the motion being denied at the second step.
“Here, Korpi’s political speech about the candidates he, Collier, and Parents Advocate League support could not have occurred without Korpi registering the domain names and redirecting Internet traffic from those domain names….Collier, however, confuses the threshold question of whether her claims are based on protected activity and the question whether she has established a probability of prevailing on the merits.”
A narrow exception would apply if Collier could establish that Korpi committed a crime, the justice said, citing Flatley v. Mauro (2006) 39 Cal.4th 299. The case upheld the denial of an anti-SLAPP motion brought by an attorney who was sued by Michael Flatley after he threatened to sue on behalf of a woman who claimed she was raped by the “Lord of the Dance” star, and to disseminate information about the case if the claim was not settled.
But there was no showing that Korpi committed a crime, Aronson said.
To be guilty of criminal impersonation, the Penal Code requires that a person not only assume the identity of another, but to use that identity to subject that person to civil or criminal liability or deprive the person of a benefit, the justice noted. Korpi, he said, never told anyone he was Collier or redirected traffic to any website that misrepresented itself as Collier’s, and certainly never committed any “additional act” that subjected Collier to liability or deprived her of any benefit.
The case is Collier v. Harris, 15 S.O.S. 4255.
Copyright 2015, Metropolitan News Company