GTX Global v. Left

Filed 5/4/07 GTX Global v. Left CA

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from the judgments of the Superior Court of Los Angeles County. Lee Edmon, Judge. Affirmed.

Law Offices of Barry K. Rothman and Kristal Marie Gunn for Plaintiff and Appellant.

Venable LLP, Peter S. Kravitz and Jon-Jamison Hill for Defendant and Respondent.

____________________________________

Plaintiff GTX Global Corporation, a Nevada corporation, styles itself as the leading provider of innovative IP [internet protocol] multimedia technologies that enable quality IP multimedia communications. Defendant Andrew Left is the founder of codefendant Stocklemon.com,^[1]which he describes as a four-year-old interactive weblog[^[2]] that publishes information and opinion about dubious stocks that Left believes are lemons. GTX alleged Left does not run Stocklemon.com as public service, but rather as a vehicle for private gain whereby Left buys short positions on publicly traded stocks (including shares of GTX) in order to realize substantial profits when he publishes negative information that causes the stocks value to drop. According to GTX, Left wantonly published at least five defamatory falsehoods concerning GTX through Stocklemon.com, causing more than $50 million in damages. GTX alleged various causes of action based on those defamatory statementstrade libel; intentional interference with prospective economic advantage; securities fraud in violation of Corporations Code section 25400, subdivision (c);^[3]federal securities fraud in violation of section 77q of title 15 of the United States Code; and conspiracy. GTX also sought an injunction to prevent Left from publishing defamatory statements.

The trial court granted Lefts motion pursuant to Code of Civil Procedure section 425.16 (the anti-SLAPP statute)^[4]and dismissed the entire GTX complaint. GTX timely appeals, contending the trial court erred in finding all of its causes of action arose from defendants constitutionally protected speech activity and GTX failed to demonstrate a probability of prevailing on those claims. We affirm.

STATEMENT OF FACTS AND PROCEDURAL BACKGROUND

Plaintiffs Allegations

In his unverified complaint, GTX alleged Left published the following false and defamatory lies about GTX on the Stocklemon.com website: (1) GTX has a convicted felon, David Hagen, heading the company; (2) GTX engages in stock fraud; (3) GTX was involved in promoting two public companiesBio Heal and Absolute Health and Fitnessthat Stocklemon.com stated were the subjects of actions by the Securities Exchange Commission (SEC); (4) GTXs chairman is a vocal advocate of financial privacy in the Bahamas and offshore banking which, according to GTX, implies that its chairman is involved in SEC stock fraud investigations; and (5) GTX is associated with Brian Kos, who had his assets frozen and is the subject of an SEC action arising out of the promotion of Absolute Health and Fitness and another company. GTX alleged that, in fact, Hagen is not an officer or director of GTX; GTX has never been associated with Bio Heal and Absolute Health and Fitness; GTX has never engaged in stock fraud; its chairman never advocated financial privacy in the Bahamas and offshore banking in order to conceal stock fraud; and GTX has never been associated with Kos.

Defendants Evidence

In support of his anti-SLAPP motion, Left submitted a declaration in which he attached the Stocklemon.com weblog pages he authored on November 12 and December 9, 2005, containing the statements challenged by GTX, along with press releases and an article on which he relied in making the challenged statements. Left argued the documents show GTX misrepresented the statements content in its allegations and defendants actual representations were either protected opinions or true statements of fact. Thus, regarding the first alleged defamatory statement, Left did not directly state in the November 14 weblog that Hagen was the head of GTX. Rather, Left cited another websitepinksheets.comfor the assertion that GTX changed its name from Gatelinx in October 2005. Left stated that a former Gatelinx officer was convicted felon David Hagen and provided a link to a press release from 2002, quoting Hagen on behalf of Gatelinx.

As to the second and third alleged defamatory statements, the November 14 weblog does not state directly that GTX engaged in stock fraud. Rather, Stocklemon.com reported that the SEC halted trading in two stocks that Left asserted had identical stock promotions and web design layout as the promotion behind GTX Global, namely Bio Heal (BHLL) and Absolute Health and Fitness (AHFI). After providing internet links, Stocklemon.com stated: This organized promotion shows all the same key characteristics as a group of other pink sheet stocks that have all been either halted or investigated including AHFI and BHLL. [] Stocklemon is confident that just like AHFI and BHLL, this one will meet a similar fate, and within 30 days, the above page will disappear from the internet. Regarding the fourth statement GTX alleged as being defamatorythat GTXs chairman advocated financial privacy in the Bahamas and offshore bankingthe weblogs reference is to the chairman of Vizual Corp. According to a press release by GTX, it had acquired Vizual Corp.

As to the alleged defamatory statement that Kos was associated with GTX, the weblogs reference to Kos is contained in an update posted the following day. Left quoted from a GTX press release in which the president of GTX denied any affiliation between GTX and either Bio Heal or Absolute Health and Fitness. Left also posted an E‑mail message from David J. Levenson, who represented himself as being legal counsel for GTX and asserted the information posted about his client was false. Specifically, Levenson stated that Hagen was not an officer, director, or shareholder of GTX. Levenson demanded a retraction and threatened legal action. In response, Left posted that Levenson is the longtime counsel for Brian Kos. Kos, in turn, was the same guy who had his assets frozen and is being charged by the SEC with the pump and dump promotion of Absolute Health and Fitness and Concorde America. . . . Stocklemon believes that this stock will get halted and someone will get charged in these doings.  Cautious Investing To All.

Plaintiffs Evidence and Defendants Supplemental Response

In support of its opposition to Lefts anti-SLAPP motion, GTX requested the trial court take judicial notice of six documents attached to trial counsels declaration. The first document was a complaint filed against Stocklemon.com and others in federal court in Arizona, alleging improper conduct generally analogous to that alleged in the GTX complaint. The second and third were articles criticizing Stocklemon.com for engaging in improper and self-interested stock reporting. The other three were copies of the docket sheets in three Los Angeles Superior Court actions involving similar claims against defendants. The final document attached to counsels declaration was a copy of an E‑mailed message sent by Stocklemon.com to unidentified recipients entitled, Update on GTXC that included negative information concerning GTX.^[5] According to counsel, the E‑mail repeat[ed] the outrageous defamatory statements.

Because the E‑mail update was not referenced in the complaint, the trial court permitted Left to submit supplemental briefing concerning the document. Left submitted a declaration stating he had E‑mailed the update to more than 3,000 readers from the Stocklemon.com community.

The Trial Courts Ruling

On the hearing date, the trial court issued a detailed tentative ruling in favor of granting Lefts motion. At the hearings conclusion, the trial court granted leave for the parties to file supplemental papers addressing the Update on GTXC document and took the matter under submission. Subsequently, having considered the supplemental filings, along with all the motion papers and argument, the trial court adopted its tentative ruling. It found GTXs claims all arose out of protected free-speech activity. According to the trial court, Lefts publications on Stocklemon.com were made in a public forum analogous to the newsletter in Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 472 (Damon). It also found that the subject of the challenged publications concerned matters of public interest, consistent with the holding in ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1007-1008 (ComputerXpress). The trial court found that defendants were not business competitors with GTX. It therefore rejected the argument by GTX that Lefts motion fell within the anti-SLAPP exception for statements by a business competitor intended to influence potential customers under Code of Civil Procedure section 425.17, subdivision (c).^[6]

Having found Left made a prima facie showing that the GTX complaint was a SLAPP, the trial court found GTX failed to make an affirmative showing of a probability of prevailing on the merits of any of its claims. As to the defamatory nature of the statements, the trial court found that GTX proffered no evidence that the five identified statements were actually made, and even if Lefts evidence of the November 12 weblog posting supported the allegation that some of the statements had been made, there was no evidence of falsehood or malice. GTX did not present evidence in support of the elements of the various causes of action contained in the complaint. Finally, the trial court ruled GTX had failed to demonstrate good cause for lifting the discovery stay under Code of Civil Procedure section 425.16, subdivision (g), and Left was entitled to attorney fees.

DISCUSSION

THE TRIAL COURT PROPERLY GRANTED

DEFENDANTS SPECIAL MOTION TO STRIKE

GTX argues its complaint was not subject to the anti-SLAPP statute because the statements posted on the Stocklemon.com website were not constitutionally protected and, even if they were, GTX made a sufficient factual showing of a probability of prevailing on its claims to overcome Lefts anti-SLAPP motion. We disagree.

In evaluating an anti-SLAPP motion, the trial court first determines whether the defendant has made a threshold showing that the challenged cause of action arises from protected activity. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) Under Code of Civil Procedure section 425.16 [a] cause of action against a person arising from any act of that person in furtherance of the persons right of petition or free speech . . . shall be subject to a special motion to strike. . . . (Code Civ. Proc., 425.16, subd. (b)(1).) (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.) If the court finds the defendant has made the threshold showing, it determines then whether the plaintiff has demonstrated a probability of prevailing on the claim. (Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 67.) In order to establish a probability of prevailing on the claim (Code Civ. Proc., 425.16, subd. (b)(1)), a plaintiff responding to an anti-SLAPP motion must state[] and substantiate[] a legally sufficient claim. [Citations.] 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. [Citations.] (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1056.) [A] plaintiff opposing a section 425.16 motion must support its claims with admissible evidence. (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1237.)

We independently review both the question of whether GTXs causes of action arise from protected activity and whether it has shown a probability of prevailing on the merits. (Greka Integrated, Inc. v. Lowrey (2005) 133 Cal.App.4th 1572, 1577; Gallimore v. State Farm Fire & Casualty Ins. Co. (2002) 102 Cal.App.4th 1388, 1396; ComputerXpress, supra, 93 Cal.App.4th at p. 999.)

Protected Activity

The Code of Civil Procedure provides that for purposes of an anti-SLAPP motion, an act in furtherance of a persons right of petition or free speech under the United States or California Constitution in connection with a public issue includes, under section 425.16, subdivision (e)(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, under subdivision (e)(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. GTX contends: (1) the E‑mail from the Stocklemon.com website containing the alleged defamatory statements was not made in the context of a public forum; (2) the statements did not concern matters of public interest; and (3) the statements were excluded from the reach of the anti-SLAPP statute because defendants made them as a business competitor with the intent of influencing potential customers of GTX, within the meaning of Code of Civil Procedure section 425.17, subdivision (c). None of these contentions has merit.

Initially, we agree with Left that GTX cannot rely on the E‑mail to expand the scope of its claims beyond the allegations contained in the complaint itself. The complaint does not reference the E‑mail in any respect, much less identify any statement as false or defamatory. Although the E‑mail was apparently sent approximately one month after GTX filed its complaint, GTX did not seek to amend its complaint to include allegations based on the E‑mail. As such, our review is properly limited to assessing whether the actions alleged in the complaint amount to constitutionally protected activity. (See Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2006) 136 Cal.App.4th 464, 476 [On review of an anti-SLAPP motion to strike . . . , the standard is akin to that for summary judgment or judgment on the pleadings. We must take the complaint as it is].) The claims in the complaint are all grounded on the statements published on the Stocklemon.com website. We therefore consider the E‑mail solely as evidence potentially supporting GTXs opposition to the anti-SLAPP motion.

In any event, from the fact that GTX limits its public forum argument to the E‑mail publication, it appears that GTX concedes the Stocklemon.com website where the alleged defamatory statements were initially posted was a public forum for purposes of the anti-SLAPP statute. The concession is well taken. A public forum is traditionally defined as a place that is open to the public where information is freely exchanged. (Ampex Corp. v. Cargle (2005) 128 Cal.App.4th 1569, 1576 (Ampex), quoting ComputerXpress, supra, 93 Cal.App.4th at p. 1006.) The term public forum includes forms of public communication other than those occurring in a physical setting. Thus the electronic communication media may constitute public forums. Web sites that are accessible free of charge to any member of the public where members of the public may read the views and information posted, and post their own opinions, meet the definition of a public forum for purposes of [Code of Civil Procedure] section 425.16. (Ampex, supra, 128 Cal.App.4th at p. 1576, citing ComputerXpress,supra, 93 Cal.App.4th at p. 1007.) Indeed, as our Supreme Court has recognized, Web sites accessible to the public . . . are public forums for purposes of the anti-SLAPP statute. [Citations.] (Barrett v. Rosenthal (2006) 40 Cal.4th 33, 41, fn. 4.)

Like the website on which the defendants posted their disparaging statements in ComputerXpress and the internet message board found to be entitled to constitutional protection in Ampex, the Stocklemon.com site was accessible free of charge to the public. (ComputerXpress, supra, 93 Cal.App.4th at p. 1006; Ampex, supra, 128 Cal.App.4th at p. 1576.) The fact that Left exercised editorial control over the postings did not, by itself, deprive the website of its public forum status. The essential factor is whether the means of communicating the statement permits open debate. (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 897 (Wilbanks); see also Damon, supra, 85 Cal.App.4th at p. 476.) Indeed, there is no meaningful way to distinguish the Stocklemon.com website (or the E‑mail update, for that manner) from the highly partisan homeowners newsletter found to be a public forum in Damon, supra, 85 Cal.App.4th at page 476: The newsletter was distributed to the approximately 3,000 Ocean Hills residents and neighboring businesses. Further, although most of the articles and letters were critical of [the plaintiffs] management, the Village Voice publisher also solicited contrary opinions, printed at least two letters with different viewpoints, and included articles on many other Association-related topics. The special interest website found to be a public forum in Wilbanks is materially indistinguishable from Stocklemon.com. In that case, the defendant was a self-described consumer watchdog whose website was devoted to consumer issues bearing on a particular type of insurance settlement. (Wilbanks, supra, 121 Cal.App.4th at p. 889.)

Moreover, the question whether the challenged statements were made through a public forum is not determinative. In 1997, the Legislature added a provision to [Code of Civil Procedure] section 425.16 mandating that courts broadly construe the anti-SLAPP statute to further the legislative goals of encouraging participation in matters of public significance and discouraging abuse of the judicial process. ([Code Civ. Proc.,]  425.16, subd. (a).) (Damon, supra, 85 Cal.App.4th at p. 473.) Subdivision (e)(3) of Code of Civil Procedure section 425.16 does not limit its application to statements made in recognized public forums, but extends it also to any written or oral statement or writing made in a place open to the public. Additionally, for purposes of the anti-SLAPP statute, protected free speech activity includes, under Code of Civil Procedure section 425.16, subdivision (e)(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. As such, the statute pertains to conduct in furtherance of free speech rights, regardless whether that conduct occurs in a place where ideas are freely exchanged. [Code of Civil Procedure s]ection 425.16, therefore, governs even private communications, so long as they concern a public issue. (Wilbanks, supra, 121 Cal.App.4th at p. 897.) Accordingly, even if defendants statements were not made in a public forum for purposes of Code of Civil Procedure section 425.16, subdivision (e)(3), they fall within the scope of subdivision (e)(4). (See Wilbanks, supra, 121 Cal.App.4th at pp. 897-898.)

GTXs reliance on Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, which found a token collecting newsletter not to be a public forum, is therefore misplaced. As the same court that decided Weinberg has since explained, that opinion did not discuss whether [Code of Civil Procedure section 425.16,] subdivision (e)(4) could apply without a public forum. (Terry v. DavisCommunityChurch (2005) 131 Cal.App.4th 1534, 1546.) When it did so, it concluded that subdivision (e)(4) applies to private communications concerning issues of public interest. Moreover, we find persuasive the reasoning by the Wilbanks court in which it reconciled the conflicting decisions in Weinberg and Damon by recognizing that under some circumstances the relevant forum is limited to a single source of information, while in other circumstances the forum will include several or many sources of information. (Wilbanks, supra, 121 Cal.App.4th at p. 896.) Because the critical question under the anti-SLAPP statute is whether the means of communicating the challenged statement permits open debate (id. at p. 897), the fact that a newspaper or website might be limited to a single source of information does not necessarily mean that its statements were not made in a public forum. Where the newspaper is but one source of information on an issue, and other sources are easily accessible to interested persons, the newspaper is but one source of information in a larger public forum. [] In a sense, the Web, as a whole, can be analogized to a public bulletin board. A public bulletin board does not lose its character as a public forum simply because each statement posted there expresses only the views of the person writing that statement. It is public because it posts statements that can be read by anyone who is interested, and because others who choose to do so, can post a message through the same medium that interested persons can read. (Id. at pp. 896-897.) As was the case in Wilbanks, those who disagree with Stocklemon.com can create their own Web sites or publish letters or articles through the same medium, making their information and beliefs accessible to anyone interested in the topics discussed in [Lefts] Web site. (Id. at p. 897.)

We therefore address the question whether publishing the challenged statements was connected with an issue of public interest for purposes of Code of Civil Procedure section 425.16, subdivision (e). The most commonly articulated definitions of statements made in connection with a public issue focus on whether (1) the subject of the statement or activity precipitating the claim was a person or entity in the public eye; (2) the statement or activity precipitating the claim involved conduct that could affect large numbers of people beyond the direct participants; and (3) whether the statement or activity precipitating the claim involved a topic of widespread public interest. [Citations.] As to the latter, it is not enough that the statement refer to a subject of widespread public interest; the statement must in some manner itself contribute to the public debate. (Wilbanks, supra, 121 Cal.App.4th at p. 898.) Consumer information . . . at least when it affects a large number of persons, also generally is viewed as information concerning a matter of public interest. (Id. at pp. 898-899.) Lefts statements on Stocklemon.com amounted to the same type consumer interest information found to be protected in Wilbanks. Left suggested reasons why consumers should be wary of investing in GTX. As such, the statements were directly connected to an issue of public concern. (Id. at p. 900.)

GTXs assertion that the E-mailed statements merely concerned private business matters is contrary to applicable case law and belied by its own allegations. The decisions in Ampex and Wilbanks are on point. Courts have held that Internet postings about corporate activity constitute an issue of public importance upon considering the following pertinent factors: (1) whether the company is publicly traded; (2) the number of investors; and (3) whether the company has promoted itself by means of numerous press releases. (Ampex, supra, 128 Cal.App.4th at p. 1576.) Although the record does not establish the number of outstanding GTX shares, it is a publicly traded company and it inserted itself into the public area via press releases issued by the company and made available on the Internet. (Id. at p. 1577.) Additionally, GTXs allegation that it lost $50 million as a result of defendants conductnot to mention its alleged prominence as the leading provider of innovative IP multimedia technologiessuggests a public concern on the same level as that found sufficient in other decisions. (ComputerXpress, supra, 93 Cal.App.4th at p. 1008.)

Nor can GTX take advantage of the anti-SLAPP statutes commercial speech exception for statements regarding competitors, as set forth in Code of Civil Procedure section 425.17, subdivision (c). Based on its allegation that defendants were in the business of profiting by selling short positions on publicly traded stocks,^[7]GTX argues defendants were business competitors, whose statements were made for the private commercial purpose of driving down the price of GTX shares. However, a mere financial stake in the price of a publicly traded stock does not translate into competitor status under Code of Civil Procedure section 425.17, either under the statutes plain meaning or the relevant authorities. As the trial court found, the parties were not business competitorsGTX is a provider of Internet protocol technologies, and there is no allegation that defendants have anything to do with that industry. Even assuming the truth of GTXs allegations, the audience for the challenged statements was not potential GTX customers, as required by the statute. Instead, because the statements were directed at existing or potential shareholders rather than potential customers, defendants were speaking as investors rather than competitors. (ComputerXpress, supra, 93 Cal.App.4th at p. 1008.)

GTXs reliance on our recent decision in Brill Media Co., LLC v. TCW Group, Inc. (2005) 132 Cal.App.4th 324 (Brill) is entirely misplaced. In Brill, the parties were business entities engaged in a commercial dispute arising out of efforts by the defendant bondholders and their related entities to take control of the issuers assets as well as those of others. (Id. at p. 328.) More specifically, the defendants were large financial management and services conglomerates involved in the purchase and sale of financial instruments and investing in companies. (Id. at p. 341.) In essence, the plaintiff alleged the defendants breached their contractual obligations, prevented the sale of the plaintiffs assets, and forced the plaintiff into bankruptcy. The defendants filed an anti-SLAPP motion, contending that their conduct in filing an involuntary bankruptcy petition was protected by the right of petition. (Id. at p. 340.) As this court found, the bankruptcy filing and the challenged statements by the defendants were allegedly made as part of an effort to secure control of the Brill Media entities. Securing control of the Brill Media entities was the type of business transaction engaged in by the defendants. (Id. at p. 341.) In other words, the plaintiff and the defendants were contractually intertwined business entities involved in an ongoing commercial dispute, and the challenged statements by the defendants were aimed at the plaintiffs potential customers. There is nothing remotely similar alleged in the GTX complaint.

Probability of Prevailing on the Merits

Having found the invasion of privacy and defamation causes of action arose from protected free speech activity, we proceed to the question of whether GTX has demonstrated a probability of prevailing on those claims based on admissible evidence. In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant ([Code Civ. Proc.,]  425.16, subd. (b)(2)(b)); 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 defendants evidence supporting the motion defeats the plaintiffs attempt to establish evidentiary support for the claim. (Wilson v. Parker, Covert & Chidester[, supra,] 28 Cal.4th [at p.] 821.) (Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298, 317-318; see also Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 741, fn. 10.) Critically, as stated above, a plaintiff opposing a [Code of Civil Procedure] section 425.16 motion must support its claims with admissible evidence. (Tuchscher Development Enterprises, Inv. v. San Diego Unified Port Dist., supra, 106 Cal.App.4th at p. 1237; Ampex, supra, 128 Cal.App.4th at p. 1576 [In opposing an anti-SLAPP motion, the plaintiff cannot rely on allegations in the complaint, but must bring forth evidence that would be admissible at trial].)

As the trial court found, however, GTX adduced no evidentiary support for any of its causes of action.^[8] Indeed, GTX made only a vague, inconclusive attempt to argue the existence of supporting evidence as to one of its claims (the existence of defamatory statements in connection with its trade libel cause of action) and failed even to identify the elements of the remaining claims, much less identify supporting evidence for them.

GTX cannot identify a single piece of evidence to support its allegations that defendants challenged statements were false or otherwise defamatory. Rather, GTX asserts the statements are self-refuting when compared to the linked articles on the Stocklemon.com site. As below, GTX fails to provide any support for this bald assertionand our review discloses none. Nor does GTX attempt to rely on any of the documents attached to its anti-SLAPP opposition.^[9] We note, however, that none of those documents was admissible for its truth. The federal complaint, articles, and docket sheets are all hearsay, subject to no applicable exception. Below, GTX merely attempted to have the trial court take judicial notice of the documents. Although the trial court did not expressly rule on that request, its taking of judicial notice would not have amounted to admission of the documents for their truth. The hearsay rule applies to statements contained in judicially noticed documents, and precludes consideration of those statements for their truth unless an independent hearsay exception exists. (North Beverly Park Homeowners Assn. v. Bisno (2007) 147 Cal.App.4th 762, 778.) Judicial notice may not be taken of the truth of hearsay statements contained in court files. (Kilroy v. State (2004) 119 Cal.App.4th 140, 145.)

Attorney Fees

A successful defendant on an anti-SLAPP motion is entitled to recover attorney fees and costs as a matter of right. (Code Civ. Proc., 425.16, subd. (c); Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131 [any SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees].) The trial court awarded attorney fees below. Left asks that he be awarded attorney fees on appeal. The right to attorney fees extends to attorney fees and costs on appeal as well. (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 659, overruled in part on other grounds in Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 68, fn. 5; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 785.) Left, having prevailed as to the invasion of privacy and defamation claims, is entitled to his attorney fees on this appeal. However, the amount of such fees is to be determined by the trial court upon motion by Left. (Church of Scientology v. Wollersheim, supra, 42 Cal.App.4th at pp. 659-660.)

DISPOSITION

The order granting Lefts anti-SLAPP motion and the judgment dismissing the complaint are affirmed. Left is awarded his costs on appeal.

KRIEGLER, J.

We concur:

TURNER, P. J.

MOSK, J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line attorney.

^[1] Stocklemon.com did not file an answer and is not a party to this appeal.

^[2] Weblog is a synonym for blog, which is a personal Web site that provides updated headlines and news articles of other sites that are of interest to the user, also may include journal entries, commentaries and recommendations compiled by the user. (Websters New Millennium Dictionary of English (Preview Ed. 2005, version 0.9.6), retrieved Mar. 19, 2007, from dictionary.com website; see also OGrady v. Superior Court (2006) 139 Cal.App.4th 1423, 1464, fn. 21 [explaining that the term blog was apparently derived from we blog, a whimsical deconstruction of weblog, a compounding of web log, which originally described a kind of online public diary in which an early web user would provide links to, and commentary on, interesting Web sites . . . . [Citation].) The term [blog] may now be applied to any Web site sharing some of the characteristics of these early journals.].)

^[3] Corporations Code section 25400, subdivision (c) makes it unlawful for a person selling or offering for sale or purchasing or offering to purchase the security, to induce the purchase or sale of any security by the circulation or dissemination of information to the effect that the price of any such security will or is likely to rise or fall because of market operations of any one or more persons conducted for the purpose of raising or depressing the price of such security.

^[4] SLAPP is an acronym for strategic lawsuit against public participation. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.) An order granting or denying a special motion to strike under Code of Civil Procedure section 425.16 is appealable. (Code Civ. Proc., 904.1, subd. (a)(13).)

^[5] The E‑mail stated pinksheets.com had removed publication of quotes for GTX, following a Dow Jones report that proves that GTX Global was merged into a company run by notorious stock promoter Donald Oehmke, who is currently being charged by the SEC with one of the largest penny stock frauds ever.

^[6] Code of Civil Procedure [s]ection 425.16 does not apply to any cause of action brought against a person primarily engaged in the business of selling or leasing goods or services, including . . . securities . . . arising from any statement or conduct by that person if both of the following conditions exist: [] (1) The statement or conduct consists of representations of fact about . . . a business competitors business operations, goods, or services, that is made for the purpose of obtaining approval for, promoting, or securing sales or leases of, or commercial transactions in, the persons goods or services . . . [and] [] (2) The intended audience is an actual or potential buyer or customer, or a person likely to repeat the statement to, or otherwise influence, an actual or potential buyer or customer . . . . (Code Civ. Proc., 425.17, subd. (c).)

^[7] GTXs assertions that defendants conceded at oral argument that Left is in the business of selling short positions in stock and that Left has taken an equity position in GTX are not supported by the record.

^[8] Accordingly, we need not address the issues of whether the challenged statements were adequately alleged or whether they amounted to non-actionable statements of opinion.

^[9] GTX does not seek review of the trial courts ruling that it had failed to justify its request to lift the discovery stay imposed by Code of Civil Procedure section 425.16, subdivision (g), because GTX failed to make the requisite showing of good cause.