"Plaintiff has demonstrated a probability of prevailing on his defamation claim," Judge Raymond Swope wrote in his tentative ruling, issued on Jan. 22.
John Woodell, husband of Menlo Park Councilwoman Kirsten Keith, sued fire board director Virginia Chang Kiraly and city resident Chuck Bernstein in October, alleging that the pair told the media, police and others that he'd vandalized campaign signs during the 2011 fire board election.
All parties agree that Ms. Chang Kiraly's campaign sign was mysteriously uprooted from Mr. Bernstein's yard. He later found the sign tossed into the bushes, lying near Mr. Woodell's cellphone.
Mr. Woodell denied vandalizing the sign. A court filing states that the plaintiff "can only speculate that he lost his phone while walking his dog" in the neighborhood where both the Woodells and Bernsteins live.
Seth Rosenberg of Minami Tamaki LLP, representing Mr. Woodell, said that to demonstrate the probability of prevailing on a defamation claim, "the plaintiff must present evidence on every element of his claim that would allow a jury to find in his favor."
His objection to the order to dismiss included a declaration from firefighter John Wurdinger saying that the fire board director told him that "everyone knows that John Woodell is going around town vandalizing my signs."
Ms. Kiraly denied making such comments, according to court documents.
At this point in the proceedings, "the court does not weigh credibility or comparative strength of the evidence," according to Mr. Rosenberg's filing. Instead, the court accepts "as true all evidence favorable to the plaintiff."
Mr. Woodell asked for attorney fees related to this portion of the proceedings, but the judge denied the request. According to Mr. Rosenberg, to recover the fees, the plaintiff would have had to demonstrate that the motion to dismiss the lawsuit was frivolous or intended to delay the case.
Attorneys Harmeet Dhillon and Krista Shoquist, representing Virginia Chang Kiraly, filed the motion to dismiss on Nov. 26, describing the suit as "a frivolous lawsuit that, on its face, both violates the First Amendment to the United States Constitution and is fatally defective as a pleading."
They argue that Mr. Woodell's public participation in the fire board campaign and standing as an elected member of the San Mateo County Democratic Central Committee makes him a public figure, meaning that the plaintiff must prove actual malice to win a defamation claim.
Mr. Woodell's attorney, on the other hand, argues that the Menlo Park resident is a private figure, as he was not an elected official at the time of the fire board election.
The parties will present their arguments before Judge Swope sometime this spring.
"If the tentative ruling stands, the San Mateo court would essentially be making new law," said Dhillon, who is representing Ms. Kiraly. "We are unaware of a single reported opinion in the California courts holding that speech this closely tied to a hotly contested election — particularly where the plaintiff is a leading elected figure in one party and a defendant is a leading elected figure in the other party — can be the subject of the defamation lawsuit. The California Courts of Appeal have repeatedly ruled that such speech between or concerning political campaigns and figures is protected under the First Amendment."
She said that they will immediately appeal the judge's decision should he deny the motion to dismiss the lawsuit.