Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06AS03504
This is an appeal from the denial of a defendant’s anti-SLAPP (strategic lawsuit against public participation) motion. (Code Civ. Proc., § 425.16 [hereafter, § 425.16].) Both parties represent themselves. We conclude that defendant failed to present a record on appeal that is sufficient to support her contentions of error. Accordingly, we affirm the order denying the anti-SLAPP motion.
PROCEDURE
Defendant Suzanne Shell filed an anti-SLAPP motion, seeking to have plaintiff William O. Tower’s complaint dismissed. Although the record on appeal does not include Tower’s complaint or Tower’s response to her anti-SLAPP motion, Shell’s motion asserted that the complaint included causes of action for libel per se, defamation, slander, conspiracy, and intentional infliction of emotional harm.
In her points and authorities in support of her anti-SLAPP motion, Shell gives what she claims is the background of Tower’s complaint. Although, as we explain later, we cannot take her word for it that this background is based in fact or reflects the allegations of Tower’s complaint, we briefly summarize Shell’s assertions of fact to give some context.
According to Shell, she and Tower are both involved in what she refers to as the family rights movement. Each advocates for reform of child welfare practices. But they are not allies. Shell claims that Tower has misappropriated her trade secrets, and Tower asserts, ostensibly in his complaint, that Shell has disseminated lies about him through her Web site and an interactive online group and in communications with McGeorge School of Law.
Shell attached numerous exhibits to her anti-SLAPP motion. She did not, however, attempt to authenticate these exhibits with a declaration signed under penalty of perjury or by any other means. Also attached (and labeled as an exhibit) is an affidavit signed by Shell in which she gives her version of the feud between her and Tower.
After a hearing on the motion, the trial court issued the following order, with respect to the anti-SLAPP aspect of the filings: “The Special Motion to Strike is denied. The exhibits to the motion help plaintiff meet his burden of showing a probability of prevailing on his claim. Defendant Shell’s exhibit C consists of emails exchanged between her and McGeorge School of Law. In those emails, Ms. Shell states she has ‘been subjected to harassment, retaliation, copyright infringement, misappropriation of trade secrets/theft of trade secrets and conspiracy by a person who claimed to be a student at your school and who is a competitor of mine.’ Other exhibits make it clear she is inquiring about plaintiff Tower. Although defendant Shell claims the inquiry is permissible because it relates to an attempt to invoke a disciplinary review, C.C.P. section 425.16(e)(2) does not apply to this situation.”
The remainder of the ruling concerns Shell’s contentions that the trial court did not have jurisdiction over her and that the complaint did not state a cause of action against her. The trial court found that she had appeared generally and that an anti-SLAPP motion is not the method for raising issues concerning the pleadings. Shell does not raise these issues on appeal.
DISCUSSION
I
Preliminary Issues
Before we consider Shell’s contentions on appeal, we review some issues pertinent to our review of the trial court’s order, including the parties’ self-representation and the appellant’s burden to provide a sufficient record on appeal.
“Under the law, a party may choose to act as his or her own attorney. [Citations.] ‘[S]uch a party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. [Citation.]’ [Citation.] Thus, as is the case with attorneys, pro. per. litigants must follow correct rules of procedure.” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.)
A trial court’s order is presumed correct, and the appellant bears the burden of establishing error. It is axiomatic in appellate review that a judgment of a lower court is presumed correct. (County of Sacramento v. Lackner (1979) 97 Cal.App.3d 576, 591.) This burden to establish error includes presentation in the appellate court of a record on appeal that is sufficient to support the argument that the trial court erred. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575.) “Failure to do so precludes an adequate review and results in affirmance of the trial court’s determination. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)” (Estrada v. Ramirez (1999) 71 Cal.App.4th 618, 620, fn. 1.)
Other than the notice of appeal, the minute order from which she appealed, and Shell’s motion to strike, Shell designated no document for inclusion in the record on appeal. She did not designate the complaint. Likewise, she did not designate Tower’s response to her motion to strike. Finally, Shell did not obtain a reporter’s transcript of the hearing on the motion to strike. As will be seen, this partial clerk’s transcript is inadequate to support Shell’s contentions of error.
II
Shell’s Contentions
“Section 425.16 provides, inter alia, that ‘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 or 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.’ (§ 425.16, subd. (b)(1).) [¶] Resolution of an anti-SLAPP motion ‘requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains were taken “in furtherance of the [defendant]’s right of petition or free speech under the United States or California Constitution in connection with a public issue,” as defined in the statute. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.’ [Citation.]” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733.)
“Review of an order granting or denying a motion to strike under section 425.16 is de novo. [Citation.] We consider ‘the pleadings, and supporting and opposing affidavits . . . upon which the liability or defense is based.’ (§ 425.16, subd. (b)(2).)” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)
As noted, we must consider the pleadings, as well as the supporting and opposing affidavits in determining whether the anti-SLAPP motion was properly denied. Shell failed to designate the pleadings as part of the record on appeal. Although she includes her own affidavit, we are left in the dark concerning the state of the remaining record below, including whether Tower filed an opposition and provided supporting evidence.
Failure to designate the complaint as part of the record defeats all of Shell’s contentions on appeal. Knowledge of what is in Tower’s complaint is indispensable to determining whether he filed a SLAPP action and whether he has a probability of prevailing on the merits. Because Shell did not provide the pleadings, we do not know what causes of action Tower alleged in the complaint and what facts he claims support those causes of action. We are therefore unable to determine whether Shell is correct in claiming that the anti-SLAPP motion was improperly denied.
For example, Shell asserts that she is immune from liability by application of 47 U.S.C. § 230. That statute, known as the Communications Decency Act of 1996, states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” (47 U.S.C. § 230(c)(1).) “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” (47 U.S.C. § 230(e)(3).) Despite Shell’s claim that this act shields her from immunity for her postings about Tower on the Internet, we cannot likewise reach that conclusion because we have not been informed of Tower’s causes of action or their accompanying factual allegations. We do not have a record upon which we can rely to state that Tower alleges Shell is liable as a result of Internet postings.
Shell’s remaining contentions fail for the same reason. She contends that (1) her written communications to McGeorge School of Law concerning Tower were made in furtherance of her right to petition, (2) Tower is a public figure, (3) her speech was in the public interest, (4) her publication was part of ongoing litigation, (5) her comments were made in a public forum, (6) Tower does not have a reasonable probability of prevailing, (7) she did not act with malice, (8) she did not act as part of a conspiracy, and (9) she was not the author of comments that Tower claims caused emotional harm. Each of these contentions requires a knowledge of the contents of Tower’s complaint.
Because the absence of the complaint alone establishes that the partial record on appeal provided by Shell is inadequate, we need not further analyze whether other elements of the trial court record, such as Tower’s response to the anti-SLAPP motion or the reporter’s transcript of the hearing, also are necessary to our review of Shell’s contentions. Since she has failed to provide an adequate record, we must affirm. (Denham v. Superior Court, supra, 2 Cal.3d at p. 564.)
DISPOSITION
The order is affirmed. Tower shall recover his costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
SIMS, Acting P. J., DAVIS, J., NICHOLSON, J.