Opinion
G037148
4-25-2007
MARC FAWAZ, Plaintiff and Respondent, v. THE VILLAS AT CORTE BELLA COMMUNITY ASSOCIATION et al., Defendants and Appellants.
Lewis Brisbois Bisgaard & Smith, Kenneth C. Feldman, and Brian Slome for Defendants and Appellants. Law Office of Joe Utzurrum and Joe Utzurrum for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Defendant The Villas at Corte Bella Community Association (Villas) and three members of its board of directors appeal from an order denying their anti-SLAPP motion (Code Civ. Proc., § 425.16) to strike several causes of action of the complaint of Mark Fawaz (plaintiff), a former community resident. Plaintiff alleges defendants injured him through racially motivated wrongful activities, including harassment, invasion of privacy, defamation, and various civil rights violations.
All further statutory references are to the Code of Civil Procedure unless otherwise stated. "SLAPP is an acronym for `strategic lawsuits against public participation. [Citation.] A special motion to strike a SLAPP action, codified in . . . section 425.16, provides a procedural remedy to gain an early dismissal of a lawsuit or a cause of action that qualifies as a SLAPP." (Slaney v. Ranger Ins. Co. (2004) 115 Cal.App.4th 306, 309, fn. 1 (Slaney).)
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 persons 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." The statute sets out "a two-step process for determining whether an action is a SLAPP. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. [Citation.] `A defendant meets this burden by demonstrating that the act underlying the plaintiffs cause fits one of the categories spelled out in section 425.16, subdivision (e)." (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier).)
Section 425.16, subdivision (e)s four categories of "`act[s] in furtherance of a persons right of petition or free speech . . . in connection with a public issue" are: "(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (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; (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; (4) or 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."
Defendants concede only the latter two categories, section 425.16, subdivisions (e)(3) and (4), potentially apply here. In both of those categories, the defendant must show the acts alleged in plaintiffs complaint were in connection with a public issue or issue of public interest. Although no authority "defines the precise boundaries of a public issue" (Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 924 (Rivero), in general, a statement or activity implicates public interest when it involves "a person . . . in the public eye," it "could directly affect a large number of people beyond the direct participants," or it is "a topic of widespread, public interest." (Ibid.; see also Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 898 (Wilbanks) ["Both categories are limited by the requirement that the statement or conduct be connected with an issue of public interest"].)
Where a defendant fails to demonstrate that the act underlying the plaintiffs claim fits one of the categories spelled out in section 425.16, subdivision (e), the court denies the anti-SLAPP motion without moving on to decide whether the plaintiff has demonstrated a probability of prevailing on the claim. (See Navellier, supra, 29 Cal.4th at p. 88.) That is what the court did in this case.
On appeal, we conduct a de novo review. (Governor Gray Davis Com. v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 456 (Davis).) Here, we conclude defendants did not demonstrate that the acts giving rise to plaintiffs claims fit within either of the pertinent categories of section 425.16, subdivision (e). Rather, the statements were akin to those styled by the court in Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1127 (Weinberg), as constituting "a private campaign, so to speak, to discredit plaintiff in the eyes of a relatively small group of fellow [association members]." Indicative of a long-running vilification effort, defendants statements took aim at plaintiffs alleged country of origin and raised questions about, inter alia, his patriotism, personal finances, property transactions, honesty, and integrity. But under the law discussed more fully, post, they did not involve "a person . . . in the public eye," they did not concern a topic that "could directly affect a large number of people beyond the direct participants," and the subject matter was not "a topic of widespread, public interest." (Rivero, supra, 105 Cal.App.4th at p. 924.) Even under the required broad construction of the statute (§ 425.16, subd. (a); Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 473 (Damon)), plaintiffs complaint does not arise from defendants activities protected within the categories of section 425.16, subdivisions (e)(3) or (e)(4), thus it does not provide the stuff out of which a winning anti-SLAPP motion is made.
We use the term advisedly. The inappropriate tone of the complaint, other pleadings, motions, responsive papers, and briefs on appeal bears ample witness to deep-seated animosity between one or more of the defendants and plaintiff.
FACTS
Plaintiff filed this action in January 2006. The complaint alleges the Villas is organized for the owners and residents of a 41-unit development in Irvine, California. At relevant times, plaintiff and defendants Arthur Gross, III, Homayoun Takestani, and Reggie Lomeli were homeowners or residents of the community. Plaintiff formerly served and defendants currently serve on Villas board.
Apparently, another named defendant, Marc Hoffman, identified as a community resident and board officer, has not been served with the complaint, and thus is not included with the collective defendants on appeal.
At a January 2003 meeting of Villas board, when plaintiff was president of the board, Gross, a member, attacked plaintiff with racially charged statements, such as, "[T]his isnt Lebanon," and "[T]his isnt how we do things in the United States," and announced he intended to have plaintiff removed from the board. Gross repeatedly made similar racial or ethnic remarks at subsequent board meetings, such as, "I will get you deported," "I wont stop until I take you down," and "I will report you to the F.B.I."
A new board not including plaintiff took office in March 2004. Plaintiff never ran for office again. Nonetheless, according to plaintiff, over the next two years, at various times and in various settings, defendants falsely stated that plaintiffs true nationality was unknown and that because he was born in Lebanon, a country "on the United States Homeland Security Terrorist list," he was not allowed to own property in this country. Defendants further stated or implied that plaintiff was associated with terrorist activities and organizations, had violated the Patriot Act by his conduct, and was a threat to national security. Defendants reported to the police department that plaintiff was violent and a threat to the community and had used duct tape to obscure a No Parking sign that Gross had placed at the rear of plaintiffs property. They further repeatedly sent written communications to community members and spread the word orally that plaintiff had used nine different names or aliases, had recorded 43 transactions on his property title since acquiring the unit (implying the property was related to terrorist and illegal activities), did not own the residence, was submitting false claims to insurance carriers who deemed him fraudulent and dishonest, could not "pay [his] personal bills," had defaulted on loans, and had pilfered water and electricity. At one board meeting, defendants accused plaintiff "of being a liar, a thief, a cheater and stealing money from the VILLAS." Lomeli became violently angry with plaintiff and in a rage threw a pen at him (hence, the assault cause of action), although the pen missed its mark and struck someone else. An e-mail sent by Gross to various recipients falsely said the police department had filed a vandalism complaint against plaintiff. Gross warned that plaintiff was "getting dangerous," that he was "concerned for [his] welfare and the welfare of others," and that plaintiff had already cost Gross and the community members "a fortune."
In a declaration, plaintiff attested Gross falsely told plaintiffs neighbors he had obtained a $10,000 judgment against plaintiff. Gross also contacted the FBI and sought an investigation, reporting that plaintiff had used aliases and must have ties to terrorists because of his Middle Eastern background. Defendants falsely accused plaintiff of having stolen or embezzled Villas funds while on the board and having spent some of the money to purchase "a brand new sports convertible." In the presence of two other community residents, Gross told the Irvine Police Department that plaintiff had raided the associations bank account for his own personal use. During board meetings and casual conversations, defendants disclosed private facts relating to plaintiff which they said they had obtained from court documents, such as his marriage dissolution file, concerning, for instance, plaintiffs child support payments and his psychological evaluations in family court.
Defendants alleged relentless racially motivated campaign against plaintiff was intended to deprive him of the privileges of membership in the community and drive him out. It succeeded. Plaintiff says many people with whom he had at one time enjoyed social relationships began to shun him, and eventually he was forced to sell his residence at a considerable loss and move away.
Plaintiff charged defendants with violation of his civil rights under the California Constitution, assault, intentional and negligent infliction of emotional distress, libel per se and slander per se, false light, and two forms of invasion of privacy. Defendants demurred and filed a special motion under section 425.16 to strike all causes of action except the assault and defamation per se charges. There is no issue on appeal relating to the demurrers: Only the order on the motion to strike is before us. In that respect, the court found defendants had "not made a threshold showing that the communications at issue were made in public forum or were of public interest," and denied the motion. Defendants appeal, and we affirm.
DISCUSSION
In ruling on an anti-SLAPP motion, the court initially determines whether the defendants acts were in furtherance of the right of petition or free speech as defined in section 425.16. "The anti-SLAPP statutes definitional focus is not the form of the plaintiffs cause of action but, rather, the defendants activity that gives rise to his or her asserted liability — and whether that activity constitutes protected speech or petitioning." (Navellier, supra, 29 Cal.4th at p. 92; see also Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 962 (Wollersheim) ["[T]he nature or form of the action is not what is critical but rather that it is against a person who has exercised certain rights"].)
The Public Issue Requirement
Defendants central contention is that each subject cause of action is based upon communications made by members of a housing associations board of directors in letters to members, at meetings of the members, directly to plaintiff or in confidential communications to plaintiffs attorneys, concerning the manner in which the housing association should be governed. They do not invoke protection under either subdivision (e)(1) or (e)(2) of section 425.16; rather, they argue the communications fall within the categories set forth in section 425.16, subdivisions (e)(3) and (e)(4).
Section 425.16, subdivision (e)(3) protects statements and writings "made in a place open to the public or a public forum in connection with an issue of public interest." Section 425.16, subdivision (e)(4) protects "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."
Solely for the purpose of brevity, we will assume the subject statements and writings were "made in a place open to the public or a public forum," as set forth in section 425.16, subdivision (e)(3), even though under the allegations of the complaint, it appears such may not be the actual case. We need not discuss the point because the "public issue" or "issue of public interest" factor of the third and fourth categories is entirely dispositive, rendering the "public forum" issue inconsequential. Thus, we need not analyze the "public forum" discussions in Damon, supra, 85 Cal.App.4th 468, Weinberg, supra, 110 Cal.App.4th 1122, Wilbanks, supra, 121 Cal.App.4th 883, or any other authority.
"Public issue" and "issue of public interest" are often used interchangeably by the courts and do not appear to differ in any meaningful way. Damon, supra, 85 Cal.App.4th at page 479, notes "`public interest within the meaning of the anti-SLAPP statute has been broadly construed to include not only governmental matters, but also private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a governmental entity." Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107, 119 (Du Charme), expands on the principle, stating that with regard to section 425.16, subdivisions (e)(3) and (e)(4), "in cases where the issue is not of interest to the public at large, but rather to a limited, but definable portion of the public (a private group, organization, or community), the constitutionally protected activity must, at a minimum, occur in the context of an ongoing controversy, dispute or discussion, such that it warrants protection by a statute that embodies the public policy of encouraging participation in matters of public significance." As noted at the beginning of this opinion, a statement or activity has been held in the "public interest" when it involves: a person or entity in the public eye; conduct that could affect large numbers of people beyond the direct participants; or a topic of widespread interest. (Rivero, supra, 105 Cal.App.4th at p. 924.)
With regard to the "public issue" of subdivision (e)(3) and the "issue of public interest" of subdivision (e)(4) of section 425.16, the Weinberg courts lengthy analysis and compilation of illustrative case law is highly instructive: "[B]oth the third and fourth categories of conduct that fall within section 425.16 are subject to the limitation that the conduct must be in connection with an issue of public interest. The Legislature intended this requirement to have a limiting effect on the types of conduct that come within the third and fourth categories of the statute. [Citations.] [¶] The statute does not provide a definition for `an issue of public interest, and it is doubtful an all-encompassing definition could be provided. However, the statute requires that there be some attributes of the issue which make it one of public, rather than merely private, interest. A few guiding principles may be derived from decisional authorities. First, `public interest does not equate with mere curiosity. [Citations.] Second, a matter of public interest should be something of concern to a substantial number of people. [Citation.] Thus, a matter of concern to the speaker and a relatively small, specific audience is not a matter of public interest. [Citations.] Third, there should be some degree of closeness between the challenged statements and the asserted public interest [citation]; the assertion of a broad and amorphous public interest is not sufficient [citation]. Fourth, the focus of the speakers conduct should be the public interest rather than a mere effort `to gather ammunition for another round of [private] controversy . . . . [Citation.] Finally, `those charged with defamation cannot, by their own conduct, create their own defense by making the claimant a public figure. [Citation.] A person cannot turn otherwise private information into a matter of public interest simply by communicating it to a large number of people." (Weinberg, supra, 110 Cal.App.4th at pp.1132-1133.)
With these principles as a framework, we turn to and reject defendants various arguments that the statements and conduct alleged by plaintiff are protected as involving a "public issue" or "issue of public interest" under section 425.16, subdivisions (e)(3) and (e)(4).
Defendants Arguments
Defendants liken this case to Damon, supra, 85 Cal.App.4th 468, contending that here, as there, section 425.16, subdivision (e)(3) applies because the communications were undertaken in a public forum and related to issues of public interest. Quite apart from the public forum aspect, we note that in Damon, there were controversies within a 3,000-member residential community association over (1) whether the community should continue with self-government under the management of Dennis E. Damon or switch to a professional management company, and (2) Damons competency to perform his job. (Damon, supra, 85 Cal.App.4th at p. 479.) The Damon court observed that the alleged defamation of Damon arising in this context, where Damon was ousted through a recall election, "pertained to issues of public interest within the Ocean Hills community. Indeed, they concerned the very manner in which this group of more than 3,000 individuals would be governed — an inherently political question of vital importance to each individual and to the community as a whole." (Ibid.)
We need go no further than contrast that factual setting with the one here, where, despite defendants protests to the contrary, there was no issue of self-government involved, there were no issues of plaintiffs recall from the board (indeed, the activities continued for years after he was out of office), plaintiff was not running for election or vying for any position of responsibility in the association, there were no political issues at stake, and the alleged statements were unrelated to the residents fundamental choices regarding management or leadership of the association (see Damon, supra, 85 Cal.App.4th at p. 479), or anything that mattered to the Villas as a community. (See Weinberg, supra, 110 Cal.App.4th at p. 1131.)
Defendants argue the communications were intended to "increase public participation." In what? The war against terrorism? Such a "broad and amorphous public interest" does not suffice. (Id. at p.1132.) We can conceive of no legitimate public participation to be advanced by statements regarding plaintiffs country of birth, purported laws forbidding people of Lebanese ancestry from owning property under the Patriot Act, plaintiffs alleged name changes or transactions pertaining to his property, the status of his personal finances, or his purported dishonesty in dealing with insurance carriers, much less his alleged pilfering of water and power, the details of his marriage dissolution, child support payments, or psychological status, or even his alleged past performance as an officer of the association. Particularly in light of Grosss avowed intent to get plaintiff deported, to "take him down," and to report him to various law enforcement agencies, these statements, whether or not disseminated in a "public forum," were not of concern to a substantial number of people, but were instead indicative of defendants personal efforts "`to gather ammunition for another round of [private] controversy . . . ." (Weinberg, supra, 110 Cal.App.4th at pp. 1132-1133.) Defendants did not "turn otherwise private information into a matter of public interest simply by communicating it to a large number of people." (Id. at p. 1133.) Damon is inapt.
We bear in mind that defendants do not contend their statements were protected under the official proceedings provisions of section 425.16, subdivisions (e)(1) or (e)(2), no doubt because the record is devoid of any evidence of investigations or charges arising from their threats to call upon local, state, or national law enforcement agencies. Moreover, we reject defendants argument that accusations of criminal activity always implicate public interest. No criminal charges are pending against plaintiff, and he is not involved in the criminal justice system (see, e.g., Weinberg, supra, 110 Cal.App. 4th at p. 1134), and an assertion that a person has, in the past, engaged in criminal activity "usually serves little independent public purpose." (Briscoe v. Readers Digest Association, Inc. (1971) 4 Cal.3d 529, 537.) Finally, as a general rule and for reasons of the public policy set forth in defamation statutes, "causes of action arising out of false allegations of criminal conduct, made under circumstances like those alleged in this case, are not subject to the anti-SLAPP statute." (Weinberg, supra, 110 Cal.App.4th at p. 1136.) Perhaps that is why plaintiffs two causes of action for defamation per se were not challenged in defendants anti-SLAPP motion.
Defendants argue the court erred in its reliance on Weinberg to deny the anti-SLAPP motion. They criticize Weinberg as poorly reasoned in its analysis of the "public forum" issue, but we are not concerned with "public forum" here. Moreover, we are concerned not with the courts reasoning, but the correctness of the result.
Defendants assert the subject communications were of widespread public importance, similar to those in Integrated Healthcare Holdings, Inc. v. Fitzgibbons (2006) 140 Cal.App.4th 515 (Fitzgibbons ), decided by another panel of this court. That case involved the plaintiffs efforts to buy four Orange County hospitals. Concerns about plaintiffs financial stability led to public hearings conducted by the County of Orange and the California Senate. (Id. at p. 519.) Shortly after plaintiffs acquisition of the hospitals with a $50 million loan, the lender, which had also provided "a $30 million nonrevolving working capital line of credit" (id. at p. 520), served plaintiff with a notice of default. The Orange County Register reported the default after it was disclosed in plaintiffs filing with the Securities Exchange Commission, and "cited an analysts warning that [plaintiff] needed to `find another investment partner "really quickly" or the whole thing could be headed for bankruptcy court." (Ibid.)
Two days after the article appeared, defendant sent an e-mail message to medical executive committee members and others, questioning plaintiffs financial stability. Plaintiff sued defendant alleging various causes of action based on the e-mail, and the trial court denied defendants special motion to strike. Reversing, the Court of Appeal decided, inter alia, that defendant had met his burden of demonstrating the e-mail concerned an issue of public interest under subdivision (e)(4) of section 425.16. (Fitzgibbons, supra, 140 Cal.App.4th at p. 523.) The court had "no difficulty placing the financial survival of four hospitals within the county into the category of `widespread public interest" (id. at p. 524), or any of the other "general categories of cases falling within subdivision (e)(4) of section 425.16" (id. at p. 525), as delineated in Rivero, supra, 105 Cal.App.4th 913, and previously interpreted by the Fitzgibbons court in Commonwealth Energy Corp. v. Investor Data Exchange, Inc. (2003) 110 Cal.App.4th 26, 33. (Fitzgibbons, supra, 140 Cal.App.4th at p. 525.) In the case before us, we fail to see any public interest paralleling that of Fitzgibbons, and defendants have provided no insight that might enhance our appreciation of the attempted analogy.
Citing Terry v. Davis Community Church (2005) 131 Cal.App.4th 1545, 1546 (Terry) and Gallagher v. Connell (2004) 123 Cal.App.4th 1260, 1275 (Gallagher), defendants argue we should err on the side of free speech in interpreting the applicability of the public issue/public concern categories of subdivisions (e)(3) and (e)(4) of section 425.16. We need not err at all. We note Terry involved communications by church members regarding their priests improper relationship with a 16-year-old girl, and, not surprisingly, the court concluded the "issue as to whether or not an adult who interacts with minors in a church youth program has engaged in an inappropriate relationship with any of the minors is clearly a matter of public interest. The public interest is societys interest in protecting minors from predators, particularly in places such as church programs that are supposed to be safe." (Terry, supra, 131 Cal.App.4th at p. 1547.) In Gallagher, the defamatory statement pertained to a parish priest allegedly taking unfair financial advantage of an elderly parishioner who reportedly suffered from dementia. (Gallaher, supra, 123 Cal.App.4th at p. 1275.) The court summarized the public interest thusly: The statement was "a matter of concern not only to [the alleged victims] friends but to the more than 3,000 members of the Mary Star parish where Gallagher is in charge of parish finances. Moreover, whether or not the accusations against Gallagher are true, the story may cause elderly individuals to be more cautious about whom they allow to control their financial affairs; it may cause relatives and friends to more closely monitor the personal well-being of their elderly relatives and friends; it may lead religious organizations to develop standards for their employees involvement in the financial affairs of their members; and it may lead to legislation to further protect the interests of the elderly and mentally impaired. Therefore we find the statement at issue in this case involves a matter of public interest." (Ibid.)
Once again, we are at a loss to appreciate any similarity between the statements regarding the Terry and Gallagher priests alleged misconduct and the statements at issue here, which simply painted plaintiff with a broad "bad boy, foreigner" brush and served no specific public interest that defendants have been able to point out, apart from their conclusory assertion that the communications "related to the financial viability and security of the community members." For this latter point, they rely on Wilbanks, supra, 121 Cal.App.4th 883, where the court determined defendants information about a viatical settlement brokers practices, published on a website — equivalent to a public bulletin board (id. at p. 897) — was protected under the "issue of public interest" (id. at p. 898) category because "it was consumer protection information" "touch[ing] a large number of persons, both those who sell their insurance policies and those who invest in viatical settlements." (Id. at p. 899.) No such consideration is present here. We likewise reject defendants attempt to analogize Healy v. Tuscany Hills Landscape & Recreation Corp. (2006) 137 Cal.App.4th 1 (Healy), where the court held that a defamatory letter sent out by the board of directors for a housing association was subject to the anti-SLAPP statute. The communications in Healy fell within the judicial proceeding category of section 425.16, subdivision (e)(2), thus the case is inapt.
Wilbanks informs us, "[V]iaticals are arrangements that allow dying persons with life insurance policies to sell their policies to investors for a percentage of the death benefits. As a practical matter, the sooner the viator dies, the greater the return on the investment. In the meantime, the viator obtains funds to pay for medical care or other expenses. Viatical settlement firms provide the capital used to purchase the policies, typically receiving a fee of 20 to 30 percent of the amount of the death benefits. The policies are sold through independent sales agents, or brokers, such as plaintiffs here. The agents or brokers can receive sales commission[s] of 9 percent or more." (Wilbanks, supra, 121 Cal.App.4th at p. 889.)
Finally, defendants argue, their motives were pure: They simply wanted to protect the community from plaintiffs mismanagement of the Villas money. Of course, plaintiff, having been long gone from the board, was in no position to mismanage the communitys funds, thus there was no ongoing controversy implicating the publics need for protection.
Defendants have cited cases other than those discussed ante, but we see no need to check off the entire list: None of the cases serve to advance defendants cause. In summary, neither the record nor defendants legal arguments support the challenge to the trial courts order denying the special motion to strike. A review of all relevant authorities, many of which are set forth in Weinbergs comprehensive analysis and discussion (Weinberg, supra, 110 Cal.App.4th at pp. 1133-1134), leaves no doubt that the statements here related to nothing more than a private dispute between private parties. As stated by the Weinberg court, "The fact that defendant allegedly was able to vilify plaintiff in the eyes of at least some people establishes only that he was at least partially successful in his campaign of vilification; it does not establish that he was acting on a matter of public interest." (Id. at p. 1134.)
DISPOSITION
The order denying defendants anti-SLAPP motion is affirmed. Plaintiff shall recover his costs on appeal.
We concur:
BEDSWORTH, Acting P. J.
ARONSON, J.