Sparks v. Yahoo CA2/2

Filed 4/8/14 Sparks v. Yahoo CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO

PHILLIP GORDON SPARKS, B250555

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. SC118884)
v.

YAHOO! INC.,

Defendant and Respondent.

APPEAL from an order of the Superior Court of Los Angeles County. Allan J.
Goodman, Judge. Affirmed.

Phillip Gordon Sparks, in pro. per., for Plaintiff and Appellant.

Kilpatrick Townsend & Stockton, Dennis L. Wilson and Christopher T. Varas for
Defendant and Respondent.

______________________
 Appellant Phillip Gordon Sparks (Sparks) appeals the trial court’s order granting
respondent Yahoo! Inc.’s (Yahoo) special motion to strike his first amended complaint
(FAC) pursuant to Code of Civil Procedure section 425.16,1 California’s anti-SLAPP2
statute. For both procedural and substantive reasons, we affirm the trial court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
Restraining Order Against Sparks
Sparks’s action against Yahoo relates to two news articles that reported on the
entry of a restraining order against Sparks in the matter of Crow v. Sparks, case No.
SS022509 in the California Superior Court for the County of Los Angeles (the Crow
proceeding). The Crow proceeding involved a request by entertainer Sheryl Crow and
film executive Harvey Weinstein (collectively petitioners) for a restraining order against
Sparks. During the hearing on petitioners’ request on August 14, 2012, petitioners
presented expert opinion testimony from a forensic and clinical psychiatrist and
addictionologist named Dr. David Glaser. Dr. Glaser testified that it was his opinion that
Sparks “present[ed] a clear and present danger to Ms. Crow” and Mr. Weinstein. He
further testified that Sparks was “imminently dangerous” to petitioners. And, Dr. Glaser
testified that “Mr. Sparks [was] unambiguously delusional, and his delusions and his
delusional web . . . pulled Ms. Crow and Mr. Weinstein into it.” Sparks was given the
opportunity to cross-examine Dr. Glaser during the hearing.
At the conclusion of the hearing, the trial court entered the requested protective
order with Sparks’s consent.

1 All further statutory references are to the Code of Civil Procedure unless otherwise
indicated.

2 SLAPP is an acronym for strategic lawsuit against public participation. (Wilcox v.
Superior Court (1994) 27 Cal.App.4th 809, 813, overruled in part on other grounds in
Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5.)

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Media Coverage of the Restraining Order
The issuance of the protective order was reported in various news outlets,
including two articles that appeared on Yahoo news-related sites. The first article, which
was originally published by the Associated Press with a dateline of August 14, 2012, and
was subsequently posted on music.yahoo.com, quoted Dr. Glaser’s testimony that Sparks
was “imminently dangerous” and his testimony that “Sparks is unambiguously
delusional.” The second article, which appeared on Yahoo! News India with a dateline of
August 14, 2012, quoted Dr. Glaser’s testimony that Sparks was “dangerous.” Both
articles attributed the quoted testimony to Dr. Glaser and reported both his testimony and
the outcome of the hearing.
Procedural Background
On October 29, 2012, Sparks initiated this action against Yahoo. His FAC, the
operative pleading, alleges a single cause of action for defamation against Yahoo.
Yahoo responded to the FAC with an anti-SLAPP motion. Yahoo argued its news
articles were about matters of public interest and thus constituted protected speech.
Moreover, Sparks could not demonstrate a probability of prevailing because (1) the
articles were privileged reports of statements made in the course of a judicial proceeding,
and (2) they were truthful reports of the hearing at which the restraining order was issued.
Sparks did not oppose the anti-SLAPP motion.
Sparks’s Motion for Leave to File a Second Amended Complaint (SAC)
While Yahoo’s anti-SLAPP motion was pending, Sparks filed a motion for leave
to file a SAC. Three months later, while the anti-SLAPP motion and Sparks’s motion for
leave were pending, Sparks filed a proposed SAC.
Yahoo opposed Sparks’s motion for leave to file the SAC on the grounds that its
pending anti-SLAPP motion foreclosed the possibility of amendment.
Trial Court Order; Judgment; Appeal
On July 17, 2013, the trial court denied Sparks’s motion for leave to file the SAC
and struck the proposed SAC. Concurrently, the trial court granted Yahoo’s anti-SLAPP
motion, reasoning that Sparks’s claim against Yahoo arose from constitutionally

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protected conduct and that Sparks had not demonstrated a probability of prevailing,
primarily because he did not oppose Yahoo’s motion.
Judgment was entered in favor of Yahoo, and Sparks’s timely appeal ensued.
DISCUSSION
In addressing an appeal, we begin with the presumption that a judgment or order
of the trial court is presumed correct, and reversible error must be affirmatively shown.
(Ballard v. Uribe (1986) 41 Cal.3d 564, 574; Denham v. Superior Court (1970) 2 Cal.3d
557, 564.) The appellant must “present argument and authority on each point made”
(County of Sacramento v. Lackner (1979) 97 Cal.App.3d 576, 591; Cal. Rules of Court,
rule 8.204(a)(1)(B)) and cite to the record to direct the reviewing court to the pertinent
evidence or other matters in the record that demonstrate reversible error (Cal. Rules of
Court, rule 8.204(a)(1)(C); Guthrey v. State of California (1998) 63 Cal.App.4th 1108,
1115). It is not our responsibility to comb the appellate record for facts, or to conduct
legal research in search of authority, to support the contentions on appeal. (Del Real v.
City of Riverside (2002) 95 Cal.App.4th 761, 768.) If the appellant fails to cite to the
record or relevant authority, we may treat the issue as waived. (Mansell v. Board of
Administration (1994) 30 Cal.App.4th 539, 545–546.)
Moreover, Sparks’s election to act as his own attorney on appeal does not entitle
him to any leniency as to the rules of practice and procedure; otherwise, ignorance is
unjustly rewarded. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984–985; Lombardi v.
Citizens Nat. Trust Etc. Bank (1955) 137 Cal.App.2d 206, 208–209; Gamet v. Blanchard
(2001) 91 Cal.App.4th 1276, 1284; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246–
1247.)
Quite simply, Sparks did not meet his burden on appeal. He seeks reversal of an
anti-SLAPP motion on the grounds that errors were made in the Crow proceeding—
Dr. Glaser was not qualified to testify as an expert; Sparks never threatened to shoot
petitioners; and Weinstein testified falsely. Aside from the fact that Sparks does not offer
record citations to support his various contentions, we are not reviewing the propriety of
the restraining order issued in the Crow proceeding. And, because Sparks fails to explain

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why these alleged errors compel reversal of the trial court order granting Yahoo’s anti-
SLAPP motion in this action, we need not consider them. “[F]ailure of an appellant in a
civil action to articulate any pertinent or intelligible legal argument in an opening brief
may, in the discretion of the court, be deemed an abandonment of the appeal justifying
dismissal.” (Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119.)
Our analysis could stop here.
For the sake of completeness, we examine Yahoo’s anti-SLAPP motion de novo
and conclude that it was rightly granted. (Kajima Engineering & Construction, Inc. v.
City of Los Angeles (2002) 95 Cal.App.4th 921, 929.)
“A SLAPP is a civil lawsuit that is aimed at preventing citizens from exercising
their political rights or punishing those who have done so.” (Simpson Strong-Tie Co.,
Inc. v. Gore (2010) 49 Cal.4th 12, 21.) “In 1992, out of concern over ‘a disturbing
increase’ in these types of lawsuits, the Legislature enacted section 425.16, the anti-
SLAPP statute.” (Ibid.; see § 425.16, subd. (a).) Section 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
statute “posits . . . a two-step process for determining whether an action is a SLAPP.”
(Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) First, the defendant bringing the special
motion to strike must make a prima facie showing that the anti-SLAPP statute applies to
the claims that are the subject of the motion. (Wilcox v. Superior Court, supra, 27
Cal.App.4th at p. 819.) Once a moving defendant has met its burden, the motion will be
granted (and the claims stricken) unless the court determines that the plaintiff has
established a probability of prevailing on the claim. (DuPont Merck Pharmaceutical Co.
v. Superior Court (2000) 78 Cal.App.4th 562, 567–568.)
Section 425.16, subdivision (e), provides: “As used in this section, ‘an act in
furtherance of a person’s right of petition or free speech under the United States or

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California Constitution in connection with a public issue’ includes: (1) any written or
oral statement or writing made before a . . . judicial proceeding . . . , (2) any written or
oral statement or writing made in connection with an issue under consideration or review
by a . . . judicial body, [or] (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.”
News reporting is the quintessential example of “free speech,” and, consequently,
the news articles at issue qualify as protected speech under all three of these independent
standards. (Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37
Cal.App.4th 855, 864, criticized on other grounds in Damon v. Ocean Hills Journalism
Club (2000) 85 Cal.App.4th 468, 477.) The arguments raised above have no bearing on
whether Yahoo is liable for defamation for publishing news articles about what occurred
in the Crow proceeding.
Insofar as Sparks’s claim arises from constitutionally protected articles, the burden
shifted in the trial court to Sparks to establish a probability of prevailing on his
defamation action. (§ 425.16, subd. (b).) By failing to oppose Yahoo’s motion, he a
fortiori did not do so. And, as the trial court recognized, he could not have done so under
any circumstances because the articles were privileged pursuant to Civil Code section 47,
subdivision (d)(1). (Hawran v. Hixson (2012) 209 Cal.App.4th 256, 278.)
Civil Code section 47, subdivision (d)(1), defines a “privileged publication” to
include “a fair and true report in, or a communication to, a public journal, of (A) a
judicial . . . proceeding, or (D) of anything said in the course thereof.” The Yahoo
articles at issue here fall squarely within the scope of that definition. While Sparks
asserts that Yahoo deliberately “left out . . . key elements” of the “Court Report,” “to
purposely make a false impression to the public . . . that . . . Sparks is guilty of emotional
mental problems, negative traits and a dangerous ambiguously dangerous stalker,” he
offers no evidence or case citations in support of this assertion.

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 DISPOSITION
The order granting the anti-SLAPP motion is affirmed. Yahoo is entitled to
recover attorney fees and costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________________, J.
ASHMANN-GERST

We concur:

_______________________________, P. J.
BOREN

_______________________________, J.
CHAVEZ

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