Opinion
E065988
07-06-2018
ANAMBRA STATE ASSOCIATION USA et al. Plaintiffs and Respondents, v. CHRIS C. IKEANYI, Defendant and Appellant.
Law Offices of Akudinobi & Ikonte, Emmanuel C. Akudinobi, and Chijioke O. Ikonte for Defendant and Appellant. Law Offices of Timothy P. Creyaufmiller and Timonty P. Creyaufmiller for Plaintiffs and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. CIVDS1515348) OPINION APPEAL from the Superior Court of San Bernardino County. Janet M. Frangie, Judge. Affirmed. Law Offices of Akudinobi & Ikonte, Emmanuel C. Akudinobi, and Chijioke O. Ikonte for Defendant and Appellant. Law Offices of Timothy P. Creyaufmiller and Timonty P. Creyaufmiller for Plaintiffs and Respondents.
I.
INTRODUCTION
This action is the second of two civil lawsuits involving members of the nonprofit public benefit corporation known as the Anambra State Association, USA (ASA-USA). The first action (the LASC action) was filed on December 11, 2012, in the Los Angeles Superior Court by Pius Okafor and Christiopher C. Ikeanyi, as Pius Okafor et al. v. Dr. Allison Anadi et al., case No. BC497264. The LASC action alleged causes of action for enforcement of corporate bylaws, enforcement of inspection rights, preliminary and permanent injunctive relief, declaratory relief, and a derivative claim for conversion. The May 15, 2015 judgment in the LASC action was affirmed on August 23, 2017, by Division Four of the Second Appellate District Court of Appeal. The present action was filed on October 15, 2015, in the San Bernardino Superior Court, by ASA-USA and Oliver Nwabude, against Ikeanyi and codefendants Okey Onyiuke and Okafor. The present action alleges ASA-USA's causes of action for declaratory relief, preliminary and permanent injunction, and accounting against all defendants. It also alleges a fourth cause of action for defamation brought by Nwabude in his individual capacity against all defendants.
Defendant and appellant, Chris Ikeanyi, appeals from the San Bernardino Superior Court's denial of his special motion to strike plaintiffs' complaint pursuant to Code of Civil Procedure section 425.16 (anti-SLAPP motion). Ikeanyi contends the trial court made three erroneous findings: (1) ASA-USA's three causes of action do not arise from activities protected under section 425.16 (the anti-SLAPP statute); (2) ASA-USA's three causes of action do not arise from the LASC action for purposes of the anti-SLAPP statute; and (3) Ikeanyi's September 15, 2015, membership e-mail newsletter is not a communication made in a public forum, in furtherance of the right of petition or free speech, in connection with a public issue or an issue of public interest, under subdivision (e) of section 425.16. Ikeanyi also contends that ASA-USA and Nwabude have no probability of prevailing on their causes of action.
Unless otherwise noted, all statutory references are to the Code of Civil Procedure.
We reject Ikeanyi's contentions and affirm the court's judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. ASA-USA
ASA-USA is a nonprofit public benefit corporation that solicits charitable donations to provide economic and medical relief aid, to award educational scholarships, and to promote a democratic, transparent, and just government in the Anambra State of Nigeria. ASA-USA has approximately 2,000 members, in 14 local chapters across the United States. It was initially formed in 2002 as an unincorporated association, but incorporated and adopted bylaws under California law in 2007.
B. The Factual Basis of the LASC Action
In 2012, Ikeanyi was the ASA-USA assistant secretary and Okafor was the ASA-USA board chairman. They discovered that National Board President, Dr. Allison Anadi, and other officers were mishandling or improperly accounting corporate finances. Ikeanyi and Okafor requested a complete accounting of ASA-USA's finances and filed the LASC action after their request was denied. Ikeanyi and Okafor alleged in their complaint that Dr. Anadi had violated the 2007 articles and bylaws. They also sought to recover a misappropriated donation, to have Dr. Anadi and other officers resign and relinquish financial records, and to have ASA-USA hold elections for new directors.
C. The LASC Action Bench Trial
In August 2014, the Los Angeles Superior Court held a two-day bench trial on the LASC action and took the matter under submission. The court issued a tentative decision on October 2, 2014, finding in favor of Ikeanyi and Okafor on their causes of action for enforcement of corporate bylaws, enforcement of inspection rights, preliminary and permanent injunctive relief, and declaratory relief. The court deferred a ruling on Ikeanyi's and Okafor's derivative conversion claim.
D. The Memorandum of Understanding (MOU) and the Interim Management Board (IMB)
On October 21, 2014, defendants filed with the Los Angeles Superior Court an October 19, 2014, MOU between Okafor and Dr. Anadi. Okafor and Dr. Anadi agreed to have each ASA-USA chapter appoint a delegate to an IMB that would manage the association's affairs until the next annual convention and organize the 2015 ASA-USA election. Okafor and Dr. Anadi also agreed to allow the tenure of the standing ASA-USA executives to expire and to "mutually resolve" all of the issues pending in the LASC action. However, on October 22, 2014, Okafor and Ikeanyi filed an objection to the MOU's filing. Their objection informed the Los Angeles Superior Court that the MOU was only "an agreement to agree to try to resolve the case" and that no actual settlement of the LASC action had been reached.
E. ASA-USA's Motion to Intervene in the LASC Action
On December 15, 2014, ASA-USA filed a motion for leave to intervene in the LASC action. Okafor and Ikeanyi opposed the motion on the grounds that ASA-USA was already a party to the LASC action, the motion was untimely, and the motion failed to attach a complaint in intervention. On February 27, 2015, the Los Angeles Superior Court denied the motion to intervene "on the grounds stated in plaintiff's [sic] opposition."
F. The Judgment in the LASC Action
On May 15, 2015, the Los Angeles Superior Court issued a prepared statement of decision and final judgment. The court found that the 2007 articles and bylaws were duly adopted and were the ASA-USA governing documents, such that the ASA-USA should elect a new board of directors in conformity with its bylaws and California law. The court also found the defendants in the LASC action liable on the derivative conversion claim. In denying defendants' motion to order a new trial or to vacate the judgment, the court noted that the IMB was planning to "conduct a valid ELECTION OF DIRECTORS," thus rendering moot that portion of the judgment dealing with election of directors.
G. The Factual Basis of ASA-USA's Three Causes of Action
On May 21, 2015, the IMB gave notice of its intent to hold elections at an annual convention in October of that year. A similar notice was issued by Ikeanyi and Okafor on May 22, 2015, but they announced a separate electoral convention to be held in June 2015 in New Jersey. The New Jersey convention was declared illegal by the IMB. Ikeanyi was nonetheless elected ASA-USA board chairman at that convention.
H. The Factual Basis of Nwabude's Defamation Cause of Action—Ikeanyi's September 15, 2015, E-mail Newsletter
In September 2015, Nwabude and his associates advertised their own October electoral convention in Atlanta. Ikeanyi responded by issuing a September 15, 2015, membership e-mail newsletter. While the membership e-mail newsletter generally discredited the IMB and the Atlanta convention, it specifically accused Nwabude of being "an Anadi ally and protégé" and the leader of a group of "renegades" responsible for the "corruption and siphoning of Anambra State money." The membership e-mail newsletter also said that "Nwabude and his co-travelers managed to scheme $30,000.00 cash from Anambra State Government" and that the Atlanta convention was "designed as a fundraiser for a group of swindlers." The membership e-mail newsletter was sent to what Ikeanyi characterizes as "different Nigerian discussion groups" and published "on different internet fora open to the Nigeria community in the diaspora and beyond."
I. The Present Action
On October 15, 2015, ASA-USA and Nwabude filed with the San Bernardino Superior Court the present action to have the trial court determine its duly elected directors and officers; to enjoin Ikeanyi and codefendants from acting as directors or officers and from defaming ASA-USA members; and to ascertain and reobtain any ASA-USA money and records held by Ikeanyi and codefendants. In his individual capacity, Nwabude sought libel damages allegedly resulting from the membership e-mail newsletter issued by Ikeanyi on September 15, 2015.
J. Ikeanyi's Anti-SLAPP Motion
Only Ikeanyi filed an anti-SLAPP motion on December 14, 2015, because he was the only defendant served with the complaint as of December 2015.
At the March 9, 2016, hearing, the San Bernardino Superior Court focused exclusively on the issue of whether Ikeanyi satisfied his threshold burden under section 425.16, never reaching the question of whether ASA-USA and Nwabude had a probability of prevailing on the merits. The court stated, "I don't see that the dispute relates to matters that were presented in the Los Angeles litigation and no evidence is presented that the Los Angeles litigation ever addressed or adjudicated the propriety of the October 2014 convention establishing that IMB to which ASA contends had the proper power to govern in between October 2014 and October 2015 and to convene meetings to elect its board." The court also stated that "as far as to the first through third causes of action, and as to the fourth cause of action for defamation, I believe that the defendants have not—or the defendant has not established his burden of showing that it's an issue of public interest." The court further stated that "[t]he claim isn't 'we are bringing this action against you because you went to L.A. and you got this judgment'; it has to do with conduct that is either allegedly in violation of the bylaws or outside the bylaws or something like that" and "[t]he fact that there is another action that was disposed of or pending or adjudicated and—doesn't mean that a party can't then bring another action that deals with what happened in the—that implicates the judgment. I'm just not seeing that it falls within the anti-SLAPP." Concerning the September 15, 2015, membership e-mail newsletter, the court stated that "[i]t looks like an internal memo or looks like an in [sic]—there is an internal dispute between ASA on who had the right to control ASA. And you haven't given me evidence that it is a matter of public concern or that the newsletter has speech in it that was freely disseminated to all the members of ASA and that allowed the members to freely assemble and voice their thoughts in response. I don't have evidence of that."
The court informed both sides that it intended to deny the anti-SLAPP motion and that it would later file and serve its rulings on their respective evidentiary objections to the supporting declarations made by Ikeanyi and Nwabude. That same day, the court issued a minute order denying Ikeanyi's anti-SLAPP motion and referred the parties to the hearing transcript for its reasoning. The notice of ruling served by ASA-USA and Nwabude stated that "[t]he Motion of Defendant, CHRIS C. IKEANYI to Strike Plaintiffs' Complaint Pursuant to CCP Section 425.16 (Anti-SLAPP) is denied in that the causes of action stated therein do not fall under those particular matters protected by Section 425.16."
In April 2016, Ikeanyi brought a motion for reconsideration of the trial court's order denying his anti-SLAPP motion. The court denied Ikeanyi's motion for reconsideration, finding that there were no new or different facts, circumstances, or law to warrant the requested relief.
III.
THE ANTI-SLAPP STATUTE
A. Section 425.16 Special Motion to Strike
Under section 425.16, "[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." (§ 425.16, subd. (b)(1).) Section 425.16 thus establishes the anti-SLAPP motion that allows "a defendant to obtain early dismissal of a lawsuit that qualifies as a SLAPP," i.e., a strategic lawsuit against public participation, "'"'"aimed at preventing citizens from exercising their political rights or punishing those who have done so."'"'" (San Diegans for Open Government v. Har Construction, Inc. (2015) 240 Cal.App.4th 611, 621-622.)
B. Two-step Analysis
An anti-SLAPP motion is generally analyzed by the trial court in two steps. (Olive Properties, L.P. v. Coolwaters Enterprises, Inc. (2015) 241 Cal.App.4th 1169, 1174.) First, defendant must make a prima facie showing that plaintiff's cause of action arises from an act "in furtherance of the [defendant's] right of petition or free speech . . . in connection with a public issue." (§ 425.16, subd. (b)(1); Olive Properties, L.P., supra, at 1174.) Second, the cause of action must be stricken if defendant meets this threshold showing, unless plaintiff can establish "a probability that [he or she] will prevail on the claim." (§ 425.16, subd. (b)(1); Olive Properties, L.P., supra, at p. 1174.)
A preliminary consideration is the application of any section 425.17 exemptions (San Diegans for Open Government v. Har Construction, Inc., supra 240 Cal.App.4th at p. 622), which can justify denial of a special motion to strike regardless of the two-step analysis (Schwarzburd v. Kensington Police Protection & Community Services Dist. Bd., (2014) 225 Cal.App.4th 1345, 1351). The application of section 425.17 exemptions was neither raised in the special motion to strike nor raised on appeal.
C. Standard of Review
We review trial court rulings on anti-SLAPP motions under a de novo standard of review. (Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 929.) We conduct an independent review of the entire record to determine whether the parties satisfied their respective burdens under section 425.16. (San Diegans for Open Government v. Har Construction, Inc., supra, 240 Cal.App.4th at p. 622.) We look to the pleadings and supporting and opposing affidavits that state the acts upon which the liability or defense is based. (§ 425.16, subd. (b)(2); Navellier v. Sletten (2002) 29 Cal.4th 82, 89; Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) We accept the evidence favorable to plaintiff as true and evaluate defendant's evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law, neither weighing the credibility nor comparing the weight of the evidence. (Flatley v. Mauro (2006) 39 Cal.4th 299, 326.) While we are not bound by the trial court's findings, we must affirm the trial court's decision if it is correct under any theory. (San Diegans for Open Government, supra, at p. 622.)
IV.
DISCUSSION
All of the erroneous findings Ikeanyi attributes to the trial court correspond to the first step of the anti-SLAPP motion analysis, the step involving protected activities under section 425.16. Ikeanyi contends the trial court made two erroneous findings with respect to ASA-USA's three causes of action and one in relation to Nwabude's defamation cause of action. Ikeanyi also contends that ASA-USA and Nwabude cannot satisfy the second step involving a probability of prevailing on the merits. We thus address both steps and all of Ikeanyi's contentions in order.
A. First Step—Protected Activity
Concerning the first step of the analysis, the anti-SLAPP statute's "'arising from'" phrase has been interpreted to mean that "'"the act underlying the plaintiff's cause" or "the act which forms the basis for the plaintiff's cause of action" must have been an act in furtherance of the right of petition or free speech.'" (Schwarzburd v. Kensington Police Protection & Community Services Dist. Bd., supra, 225 Cal.App.4th at p. 1350.) A cause of action is thus subject to a section 425.16 special motion to strike only if it alleges protected activities as grounds for relief. (Baral v. Schnitt (2016) 1 Cal.5th 376, 395.) Protected activities are strictly limited to those that satisfy one of the definitions listed in subdivision (e) of section 425.16. (See City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 422.)
1. ASA-USA's Three Causes of Action
Ikeanyi generally contends the trial court erred in finding that ASA-USA's three causes of action for declaratory relief, preliminary and permanent injunction, and accounting do not arise from activities protected under the anti-SLAPP statute. Ikeanyi also specifically contends the trial court erred in finding that ASA-USA's three causes of action do not arise from the LASC action for purposes of the anti-SLAPP statute. We reject both Ikeanyi's general and specific contentions.
a. ASA-USA's Three Causes of Action Do Not Arise from Activities Protected under the Anti-SLAPP Statute
Causes of action for declaratory relief, injunctive relief, and accounting can arise from activities protected under the anti-SLAPP statute. (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 469; Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th 53, 67-68; see also South Sutter, LLC v. LJ Sutter Partners, L.P. (2011) 193 Cal.App.4th 634, 669 [a cause of action that alleges both protected and unprotected activity is subject to an anti-SLAPP motion unless the protected conduct is "'"'merely incidental'"'" to unprotected conduct].) For ASA-USA's declaratory relief, preliminary and permanent injunction, and accounting causes of action to arise from activities protected under the anti-SLAPP statute, the activities ASA-USA alleges of Ikeanyi and codefendants must satisfy at least one of the four definitions listed in subdivision (e) of section 425.16. (City of Montebello v. Vasquez, supra, 1 Cal.5th at p. 422.)
The first two definitions listed in subdivision (e)(1) and (e)(2) of section 425.16 concern written or oral statements associated with legislative, executive, or judicial proceedings or bodies. Subdivision (e)(1) and (e)(2) provide, "[a]s used in this section, 'act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue' includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, [and] (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law." (§ 425.16, subd. (e).)
These two definitions are not satisfied by the activities ASA-USA's three causes of action allege of Ikeanyi and codefendants. ASA-USA's three causes of action allege that Ikeanyi and codefendants conducted an illegitimate election of new ASA-USA board members and officers; that Ikeanyi and codefendants received corporate money and removed corporate books without authorization; that Ikeanyi and codefendants made unfounded claims to being ASA-USA leaders; and that Ikeanyi and codefendants discredited the other members' electoral convention in Atlanta. None of these activities involved any filings or hearings in the LASC action or any governmental proceedings. Accordingly, none of these activities involved written or oral statements or writings made before legislative, executive, or judicial proceedings in satisfaction of section 425.16, subdivision (e)(1). Likewise, none of these activities involved written or oral statements or writings made in connection with issues under consideration or review by a legislative, executive, or judicial body in satisfaction of subdivision (e)(2). Thus, because these activities were conducted independently of the LASC action or any government proceedings, none of these activities on which ASA-USA's three causes of action are based can be considered protected activities under subdivision (e)(1) and (e)(2) of section 425.16.
Subdivision (e)(3) and (e)(4) of section 425.16 define protected activities to be "(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 (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." These two definitions are also not satisfied by the activities ASA-USA's three causes of action allege of Ikeanyi and codefendants. While the activities may have involved written or oral statements or conduct furthering the exercise of the right to petition or of free speech, nothing in the record shows that they were conducted in a public forum. Even assuming they were, the record shows the activities were limited to issues of ASA-USA leadership and governance, which are not self-evidently public issues or issues of public interest.
Ikeanyi argues that issues of ASA-USA leadership and governance are public issues or issues of public interest because they concern the misuse of a California nonprofit organization's funds and the misuse of that organization's nonprofit status to further the interests of a foreign government. Ikeanyi also argues that his award of attorney fees under the private attorney general statute in the LASC action confirms that ASA-USA leadership and governance are public issues or issues of public interest. However, Ikeanyi's arguments confuse the issues raised by the LASC action with the issues raised by ASA-USA's three causes of action. ASA-USA's three causes of action do not involve the conversion of donations or the nonprofit corporation mismanagement alleged in the LASC action. ASA-USA's causes of action involve Ikeanyi's and codefendants' subsequent election, their alleged receipt of corporate money and removal of corporate books, and their discrediting of the Atlanta electoral convention.
Moreover, for purposes of section 425.16, subdivision (e)(3) and (e)(4), a public issue or an issue of public interest has been held to involve (1) "'a person or entity in the public eye,'" (2) "'conduct that could affect large numbers of people beyond the direct participants'" in the statements or activities precipitating the legal dispute, and (3) "'a topic of widespread public interest.'" (Rand Resources, LLC v. City of Carson (2016) 247 Cal.App.4th 1080, 1092.) "[A] matter of concern to the speaker and a relatively small, specific audience is not a matter of public interest." (Ibid.) "[A] matter of public interest should be something of concern to a substantial number of people." (Id. at p. 1082.) Here, the people immediately affected by issues of ASA-USA leadership and governance are ASA-USA members, whom Ikeanyi refers to as the "sons and daughters of Anambra State Nigeria" in the "diaspora and beyond." The record shows that the members of the 14 ASA-USA chapters are approximately 2,000 Anambra expatriates. However, nothing in the record shows that the members represent a substantial number of Nigerian expatriates or even Anambra State expatriates. The record also contains no evidence that issues of ASA-USA leadership and governance concern persons or entities in the public eye, large numbers of people beyond the direct participants, or topics of widespread public interest. Thus, within the meaning of subdivision (e)(3) and (e)(4) of section 425.16, issues of ASA-USA leadership and governance are not public issues or issues of public interest, and ASA-USA's causes of action do not arise from protected activities.
We therefore conclude that ASA-USA's three causes of action for declaratory relief, preliminary and permanent injunction, and accounting do not arise from activities protected under the anti-SLAPP statute.
b. ASA-USA's Three Causes of Action Do Not Arise from the LASC Action for Purposes of the Anti-SLAPP Statute
To arise from the LASC action for purposes of the anti-SLAPP statute, ASA-USA's three causes of action must allege protected litigation activities satisfying the definitions listed in subdivision (e) of section 425.16. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056, 1063; City of Montebello v. Vasquez, supra, 1 Cal.5th at p. 422.) Protected litigation activities are limited to "written or oral statement[s] or writing[s]" made before a judicial proceeding or in connection with an issue under consideration or review by a judicial body. (§ 425.16, subd. (e)(1), (e)(2).) The activities alleged of Ikeanyi and codefendants by ASA-USA's three causes of action did not involve filings, arguments, or proceedings before the Los Angeles trial court for enforcement of judgment. (§ 425.16, subd. (e)(1).) They did not involve filings or arguments concerning issues under consideration or review by the Los Angeles Superior Court (§ 425.16, subd. (e)(2)), since all the LASC action issues were addressed either by the May 15, 2015, judgment or the IMB's plan to "conduct a valid election of Directors." None of the activities at issue addressed or advanced any stage of litigation in the LASC action by way of filings or arguments. Thus, the activities alleged of Ikeanyi and codefendants by ASA-USA's three causes of action are not protected litigation activities within the meaning of section 425.16, subdivision (e)(1) and (e)(2), and ASA-USA's three causes of action cannot arise from the LASC action for purposes of the anti-SLAPP statute.
Ikeanyi argues that ASA-USA's three causes of action do arise from the LASC action because they arise from activities meant to implement the terms of the LASC action's judgment. Ikeanyi equates actions taken "in furtherance of the judgment" with actions taken in furtherance of his right of petition or free speech in connection with the LASC action. Ikeanyi justifies this equivalence by looking to the legislative intent that the anti-SLAPP statute be "'construed broadly,'" so as to support "the view that statutory protection of acts 'in furtherance' of the constitutional rights incorporated by section 425.16 may extend beyond the contours of the constitutional rights themselves." (§ 425.16, subd. (a); City of Montebello v. Vasquez, supra, 1 Cal.5th at p. 421.)
We reject Ikeanyi's argument. Because ASA-USA's three causes of action do not allege protected litigation activities under subdivision (e)(1) and (e)(2) of section 425.16, ASA-USA's causes of action cannot arise from the LASC action regardless of how broadly one interprets the anti-SLAPP statute. (See City of Montebello v. Vasquez, supra, 1 Cal.5th at p. 422.) Broad interpretation of the anti-SLAPP statute cannot redefine the factual basis of ASA-USA's three causes of action to manufacture a ground on which to argue that ASA-USA's claims arise from the protected activity of the LASC action. (See Bel Air Internet, LLC v. Morales (2018) 20 Cal.App.5th 924, 936.)
The factual background of ASA-USA's three causes of action undisputedly includes the LASC action. However, this circumstance alone does not imply that ASA-USA's causes of action are a SLAPP suit arising from the LASC action. (See Episcopal Church Cases (2009) 45 Cal.4th 467, 478 [parties' dispute over property was not a SLAPP suit because the protected free speech or petitioning activity only explained why the conflict first arose].) "'[T]hat a cause of action . . . may have been "triggered" by protected activity does not entail that it is one arising from such.'" (Rand Resources, LLC v. City of Carson, supra, 247 Cal.App.4th at p. 1091, quoting from Navellier v. Sletten, supra, 29 Cal.4th at p. 89.)
Therefore, we conclude that ASA-USA's three causes of action for declaratory relief, preliminary and permanent injunction, and accounting do not arise from the LASC action for purposes of the anti-SLAPP statute.
2. Nwabude's Defamation Cause of Action
Nwabude's defamation cause of action is based on the allegedly defamatory September 15, 2015, membership e-mail newsletter issued by Ikeanyi. Ikeanyi contends the trial court erred in finding that the membership e-mail newsletter is not a communication made in a public forum, in furtherance of the right of petition or free speech, in connection with a public issue or an issue of public interest, under subdivision (e) of section 425.16. Ikeanyi argues he "was acting in furtherance of his right of petition as secured to him by the judgment he won against Anadi and co. [sic]" by issuing the membership e-mail newsletter. We reject Ikeanyi's contention.
For publication of the membership e-mail newsletter to be an act in furtherance of rights protected under section 425.16, it likewise must be classifiable under one of the four definitions listed in subdivision (e) of section 425.16. (City of Montebello v. Vasquez, supra, 1 Cal.5th at p. 422.) The membership e-mail newsletter was not a written statement made in any legislative, executive, or judicial proceeding or made in connection with an issue under consideration or review by any legislative, executive, or judicial body, under section 425.16, subdivisions (e)(1) and (e)(2). With respect to subdivisions (e)(3) and (e)(4), there is no evidence that the membership e-mail newsletter was a written statement made in a public forum in connection with a public issue or an issue of public interest. While the record shows that the membership e-mail newsletter was sent to three group e-mail addresses, nothing suggests that an e-mail transmission is as equally "public" under section 425.16 as are publically accessible Web sites, which "are 'public forums' for purposes of the anti-SLAPP statute." (Barrett v. Rosenthal (2006) 40 Cal.4th 33, 41, fn. 4.) No evidence in the record shows that the membership e-mail newsletter was posted on a Web site by any of its recipients and made accessible to anyone who chose to visit the site. Moreover, no evidence shows that the membership e-mail newsletter was of concern to anyone outside the limited audience of ASA-USA members. That the membership e-mail newsletter may have been broadly disseminated does not make it a matter of public interest, since "not every Web site post involves a public issue" (D.C. v. R.R. (2010) 182 Cal.App.4th 1190, 1226), and "[a] person cannot turn otherwise private information into a matter of public interest simply by communicating it to a large number of people." (Rand Resources, LLC v. City of Carson, supra, 247 Cal.App.4th at p. 1092, quoting from Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1133.)
Ikeanyi nonetheless argues that the membership e-mail newsletter falls within the parameters of section 425.16, subdivision (e)(2) as a "'litigation update'" of the sort referenced in Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1266. Neville applied section 425.16, subdivision (e)(2), to an employer's prelitigation letter encouraging customers not to do business with a former employee whom the employer planned to sue for misappropriation of trade secrets. (Neville, supra, at pp. 1259, 1268.) Neville held that the letter had anti-SLAPP protection because it was a statement concerning and made in anticipation of imminent litigation. (Id., at pp. 1265-1268.) Neville arrived at its holding partly in reliance on Contemporary Services Corp. v. Staff Pro Inc. (2007) 152 Cal.App.4th 1043, which involved an e-mail updating clients on the status of pending litigation. (Neville, supra, at p. 1265; Contemporary Services Corp., supra, at p. 1050.) The e-mail fell under the scope of section 425.16, subdivision (e)(2) because it was made "'"in connection with an issue under consideration or review by a . . . judicial body."'" (Neville, supra, at p. 1266; Contemporary Services Corp., supra, at p. 1055.)
Unlike that e-mail, Ikeanyi's membership e-mail newsletter was issued in September 2015, months after the May 15, 2015, judgment was entered in the LASC action. The membership e-mail newsletter did not update recipients on imminent or pending litigation, but focused on discrediting the IMB and the Atlanta convention. Thus, Ikeanyi's membership e-mail newsletter was not a "litigation update" protected by section 425.16, subdivision (e)(2).
We therefore conclude that Ikeanyi's September 15, 2015, membership e-mail newsletter is not a communication made in a public forum, in furtherance of the right of petition or free speech, in connection with a public issue or an issue of public interest, under subdivision (e) of section 425.16.
B. Second Step—Probability of Prevailing
Only a cause of action that both arises from a protected activity and lacks even minimal merit is subject to being stricken under section 425.16. (Schwarzburd v. Kensington Police Protection & Community Services Dist. Bd., supra, 225 Cal.App.4th at p. 1350.) Accordingly, our review of the second step of the anti-SLAPP motion analysis can have no effect on the status of the parties when we conclude that a cause of action does not arise from activities protected under section 425.16, and we need not review issues that have no effect on the status of the parties. (See Kaiser Foundation Health Plan, Inc. v. Superior Court (2012) 203 Cal.App.4th 696, 715-716.) We nonetheless review the second step only to reject Ikeanyi's contention that there is no probability ASA-USA and Nwabude will prevail on their causes of action for declaratory relief, preliminary and permanent injunction, accounting, and defamation.
To establish a probability of prevailing on the merits, a 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.'" (Vargas v. City of Salinas (2009) 46 Cal.4th 1, 20.) Bearing in mind that "[t]he anti-SLAPP statute 'poses no obstacle to suits that possess minimal merit'" (South Sutter, LLC v. LJ Sutter Partners, L.P., supra, 193 Cal.App.4th at p. 670), we review each cause of action in order and decide the question of potential merit on the pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2); Vargas, supra, at p. 20).
First, for declaratory relief, ASA-USA must demonstrate that there is an actual controversy involving justiciable questions relating to the legal rights and duties of the parties under a contract, statute, or order. (§ 1060; Brownfield v. Daniel Freeman Marina Hospital (1989) 208 Cal.App.3d 405, 410.) ASA-USA need not demonstrate that it is entitled to a favorable declaration for the court to declare the rights of the parties. (Tiburon v. Northwestern P. R. Co. (1970) 4 Cal.App.3d 160, 170; Bennett v. Hibernia Bank (1956) 47 Cal.2d 540, 549-550.) These elements are satisfied in this case because the record shows that the activities alleged of Ikeanyi and codefendants created an actual controversy over legitimate ASA-USA elections, leadership, and right to corporate assets, and the controversy involves justiciable questions regarding the legal rights and duties of the parties under the ASA-USA bylaws.
Second, ASA-USA seeks to enjoin Ikeanyi and codefendants from misrepresenting their authority to speak or act on its behalf and controlling its money and records. To obtain injunctive relief, ASA-USA must establish: (1) a wrongful act constituting a cause of action, and (2) "an actual or threatened injury to property or personal rights which cannot be compensated by an ordinary damage award." (Brownfield v. Daniel Freeman Marina Hospital, supra, 208 Cal.App.3d at p. 410.) ASA-USA can establish that its official leaders were selected in the October 2015 elections organized by the IMB. ASA-USA can also establish that Ikeanyi's and codefendants' interference with its official leaders exposes ASA-USA to third party tort and contract liability. (See Civ. Code, §§ 2298, 2317, 2334.) Such actual or threatened injury cannot be readily compensated by a money judgment against Ikeanyi and codefendants. Consequently, ASA-USA can make a prima facie showing of facts supporting each of the two injunctive relief elements.
Third, for an accounting, ASA-USA must show the existence of a relationship requiring an accounting, such as a fiduciary relation, and some unliquidated and unascertained amount owed to ASA-USA that cannot be determined without an accounting. (St. James Church of Christ Holiness v. Superior Court of Los Angeles County (1955) 135 Cal.App.2d 352, 359; Raymond v. Independent Growers, Inc. (1955) 133 Cal.App.2d 154, 160.) The record shows Ikeanyi and codefendants have knowingly assumed a fiduciary relationship toward ASA-USA. (Hasso v. Hapke (2014) 227 Cal.App.4th 107, 140 [to be charged with a fiduciary duty, a person must either knowingly undertake to act on behalf and for the benefit of another or must have the duty imposed as a matter of law].) Ikeanyi acknowledges that for him "[t]o turn over the funds collected following a valid election pursuant to the bylaws and California laws to Nwabude and his cohorts will be a serious breach of fiduciary duties . . . ." Also, the September 15, 2015, membership e-mail newsletter describes Ikeanyi and codefendants as ASA-USA "EXECUTIVES," rightfully in possession of the association's "records and assets" pursuant to the LASC action judgment. These facts are thus prima facie evidence of the requisite duty and the "funds" or "assets" that warrant an accounting.
Fourth, regarding his individual claims for defamation, Nwabude must show that the September 15, 2015, membership e-mail newsletter is a false and unprivileged publication that exposes him to "'hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.'" (Civ. Code, § 45; Ruiz v. Harbor View Community Assn. (2005) 134 Cal.App.4th 1456, 1470-1471.) Nwabude declares that he was appointed as an ASA-USA officer by a board which was duly elected in the October 2015 election organized by the IMB, that he has never taken money from the association for his own purposes, and that his reputation for honesty has suffered as a result of Ikeanyi's membership e-mail newsletter. Nothing in the record contradicts Nwabude's declaration. The record instead shows that the membership e-mail newsletter is libelous on its face and actionable without proof of special damages. (Civ. Code, § 45a; Walker v. Kiousis (2001) 93 Cal.App.4th 1432, 1441.) Moreover, although malice may not be inferred from the fact of the defamatory statement (Civ. Code, § 48), the exaggerated tone of the membership e-mail newsletter is evidence of Ikeanyi's reckless disregard for truth or an actual malice that undermines any affirmative defense based on common interest privilege (§ 47, subd. (c)) or the claim that Nwabude is a limited public figure (Reed v. Gallagher (2016) 248 Cal.App.4th 841, 855 [a public figure must demonstrate by clear and convincing evidence that defamatory statements were made with actual malice]; Ampex Corp. v. Cargle (2005) 128 Cal.App.4th 1569, 1577, 1579 [public figures must prove by clear and convincing evidence that an allegedly defamatory statement was made with knowledge of falsity or reckless disregard for truth. Clear and convincing evidence commands "'"the unhesitating assent of every reasonable mind."'"]; Brewer v. Second Baptist Church (1948) 32 Cal.2d 791, 799 [the tenor of a defamatory statement may be evidence of malice when it overdraws, exaggerates, or colors the facts]). Nwabude can thus make a prima facie showing of facts supporting each element of his claim and rebutting any affirmative defenses asserted by Ikeanyi and codefendants.
Ikeanyi contends that this entire action is procedurally defective because Nwabude has not complied with the requirements of Corporations Code section 7710, subdivision (b), for derivative actions involving nonprofit mutual benefit corporations. However, this contention lacks merit. Corporations Code section 7710 prohibits a member of a nonprofit mutual benefit corporation from instituting or maintaining an action on behalf of the corporation, unless the action is a derivative suit. (Gantman v. United Pac. Ins. Co. (1991) 232 Cal.App.3d 1560, 1567.) Nothing prevents a nonprofit mutual benefit corporation from itself bringing an action to remedy losses caused by its officers and directors as an alternative to a derivative suit. (Paclink Communications Internat. v. Superior Court (2001) 90 Cal.App.4th 958, 965.) In this case, Nwabude is proceeding in his own right on the defamation cause of action, and ASA-USA is properly asserting its three causes of action on its own behalf. This case is therefore not a derivative suit and does not violate the requirements of Corporations Code section 7710.
Ikeanyi also contends that, in denying the IMB's motion to intervene, the Los Angeles trial court nullified both the IMB and the MOU on which ASA-USA and Nwabude base the legitimacy of the October 2015 Atlanta election and their authority to maintain this action. However, nothing in the record supports Ikeanyi's contention that the Los Angeles trial court nullified the IMB and the MOU in denying IMB's motion to intervene. The Los Angeles trial court adopted the reasons offered by Okafor and Ikeanyi for denying IMB's motion to intervene, namely, that ASA-USA was already a party, that the motion was untimely, and that no complaint in intervention was attached. Moreover, both Okafor and Ikeanyi acknowledged the MOU in the LASC action. Okafor and Ikeanyi conceded that the MOU expressed the agreement between Okafor and Dr. Anadi to have the IMB conduct elections and make ASA-USA affairs conform to the association bylaws and California law.
Ikeanyi further contends that the record on appeal is delimited by the trial court's evidentiary rulings. We need not consider this contention given that Ikeanyi raises it for the first time in his reply brief. (County of Los Angeles v. Allegheny Casualty Co. (2017) 13 Cal.App.5th 580, 587, fn. 7.) Even so, we reject it because we are not bound by the trial court's findings on appeal. (San Diegans for Open Government v. Har Construction, Inc., supra, 240 Cal.App.4th at p. 622.)
We therefore conclude that ASA-USA and Nwabude have a probability of prevailing on the merits of their declaratory relief, preliminary and permanent injunction, accounting, and defamation causes of action, irrespective of whether their causes of action arise from activities protected under section 425.16.
V.
DISPOSITION
The judgment is affirmed. Respondents shall recover costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: McKINSTER
Acting P. J. MILLER
J.