From the judges opinion
First Prong: Protected Activity
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An anti-SLAPP motion requires the moving party to bear the initial burden of establishing a prima facie showing that the plaintiff’s cause of action arises from the defendant’s free speech or petition activity. (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 894.)
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“[T]he constitutional guarantee [of free speech] has its fullest and most urgent application precisely to the conduct of campaigns for political office.” [Citation.] Indeed, “‘[t]he right to speak on political matters is the quintessential subject of our constitutional protections of the right of free speech. “Public discussion about the qualifications of those who hold or who wish to hold positions of public trust presents the strongest possible case for applications of the safeguards afforded by the First Amendment.”’” [Citation.] “The character and qualifications of a candidate for public office constitutes a ‘public issue or public interest’” for purposes of section 425.16. [Citation.]” (Collier, supra, 240 Cal.App.4th at 52.)
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As held by the authorities above, “[t]he character and qualifications of a candidate for public office constitutes a ‘public issue or public interest’” for purposes of section 425.16. [Citation.]” (Collier, supra, 240 Cal.App.4th at 52.) Here, the statements about the intimate images spoke to Plaintiff’s character and qualifications for her position, as they allegedly depicted Plaintiff with a campaign staffer whom she was alleged to have had a sexual affair with. (Complaint ¶ 71, fn. 5.) Accordingly, the statements were a matter of ‘public issue or public interest.’
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Based on the foregoing, the Court finds that Defendant has prevailed as to the first prong.
Second Prong: Probability of Success on the Merits
On the second prong of the analysis, courts employ a “summary-judgment-like” procedure, “accepting as true the evidence favorable to the plaintiff and evaluating the defendant’s evidence only to determine whether the defendant has defeated the plaintiff’s evidence as a matter of law.” (Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 444.)
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The elements of a civil conspiracy are (1) the formation of a group of two or more persons who agreed to a common plan or design to commit a tortious act; (2) a wrongful act committed pursuant to the agreement; and (3) resulting damages. [Citation.]” (City of Industry v. City of Fillmore (2011) 198 Cal.App.4th 191, 211–212.)
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Defendant finally asserts that even if Plaintiff had not foreclosed her own claims by her Complaint allegations, Defendant has provided competent and admissible testimony that the photographs came to him by way of an anonymous email, that he has never met or communicated with Defendant Heslep, that he has never discussed the Photographs with Defendant Van Laar prior to her publication of her articles, and that he never distributed the photographs to anyone. (Messina Decl. ¶ 2–6.)
The Court finds that Plaintiff has failed to carry her burden establishing a probability of success on the merits as to her second cause of action for civil conspiracy to violate Civil Code section 1708.85 against Defendant. As noted above, Plaintiff is required to present facts which would, if proved at trial, support a judgment in Plaintiff’s favor. (Code of Civ. Proc., § 425.16(b); Shekhter, supra, 89 Cal.App.4th at 150-151.) “[P]laintiff must show both that the claim is legally sufficient and there is admissible evidence that, if credited, would be sufficient to sustain a favorable judgment. [Citations.] In making this assessment, the court must consider both the legal sufficiency of and evidentiary support for the pleaded claims, and must also examine whether there are any constitutional or nonconstitutional defenses to the pleaded claims and, if so, whether there is evidence to negate any such defenses. [Citation.]” (McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 108.) As noted above, Plaintiff has failed to oppose the instant motion. Accordingly, Plaintiff has failed to submit any evidentiary support for her pleaded claims thereby failing to establish a probability of success on the merits.
Based on the foregoing, the Court finds that Defendant has prevailed as to the second prong and is thus a prevailing defendant for the purposes of determining whether he is entitled to attorney fees.
The judge's opines that two prongs must be met for the anti-SLAPP to succeed.
The first prong is establishing that the speech fell under "free speech or petition activity". Case law is referenced to establish that "[t]he character and qualifications of a candidate for public office constitutes a ‘public issue or public interest’". Notably, congressional law was not quoted, only case law.
The second prong concerns Hill's claim of revenge pornography - here expressed as a conspiracy to harm. What is interesting here is the opinion that if Hill had produced evidence of such conspiracy, the anti-SLAPP would have failed. However, no such evidence was submitted. (Notably, even if the anti-SLAPP had failed, Hill could still have lost her case).
Contrasting with the "Hulk Hogan" case
Quoting from wikipedia -
During the trial, Gawker argued that Bollea made his sex life a public matter, although on cross-examination, when asked by Bollea's lawyer whether a depiction of his genitalia had any "news value," former Gawker editor AJ Daulerio responded "no".
Not going into great depth, but it seems likely the jury was persuaded that it was not a matter of public interest.
Lets perform a thought experiment: Suppose the activity recorded had been holding hands, a peck on the cheek, or even a clothed full body embrace with a deep mouth kiss. I think Gawker would not have lost under those circumstances - the content being pretty normal for tabloids to publish when they can get it - provided it is for reader entertainment, it is true, and it is not a conspiracy to damage the subject or a result of blackmail. The evident difference for Gawker was the pornography - that's my theory anyway.
