Opinion
B282947
11-27-2018
WEI HAN et al., Plaintiffs and Appellants, v. KYLIN PICTURES, INC. et al., Defendants and Respondents.
Akin Gump Strauss Hauer & Feld, Rex S. Heinke, Erica A. Moran and Annie Banks for Plaintiffs and Appellants. Lavely & Singer, Michael E. Weinsten, Andrew B. Brettler and Melissa Y. Lerner for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BC646956) APPEAL from an order of the Superior Court of Los Angeles County, Terry Green, Judge. Reversed and vacated. Akin Gump Strauss Hauer & Feld, Rex S. Heinke, Erica A. Moran and Annie Banks for Plaintiffs and Appellants. Lavely & Singer, Michael E. Weinsten, Andrew B. Brettler and Melissa Y. Lerner for Defendants and Respondents.
I. INTRODUCTION
Plaintiffs Wei Han and Bliss Media US, LLC sued defendants Kylin Pictures, Inc. and Kylin Pictures International, Inc. for defamation based on statements made by defendants' spokesman during a December 2016 press conference as reported in two articles. Defendants filed a special motion to strike pursuant to Code of Civil Procedure section 425.16, also known as the anti-SLAPP statute. The trial court granted defendants' motion and awarded attorney fees and costs.
Further statutory references are to the Code of Civil Procedure. "SLAPP" is an acronym for "strategic lawsuit against public participation." (Baral v. Schnitt (2016) 1 Cal.5th 376, 381, fn. 1.)
We find defendants have not shown that the allegedly defamatory statements are acts "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" as defined by section 425.16, subdivision (e). Accordingly, the anti-SLAPP statute does not apply. We therefore reverse the order granting the special motion to strike and vacate the award of fees and costs.
II. BACKGROUND
A. Plaintiffs' Defamation Complaint
Plaintiff Wei Han (Han) is the chief executive officer of Bliss Media US, LLC (Bliss), a motion picture financing, production, and distribution company focusing on the Chinese market and film industry. Kylin Pictures, Inc. and Kylin Pictures International, Inc. (collectively Kylin Pictures) are also financing, production, and distribution companies operating in the Chinese market.
On January 13, 2017, plaintiffs sued defendants alleging a single cause of action for defamation. Plaintiffs alleged that Bliss and Kylin Pictures affiliates (Kylin Network) partnered in the production of a motion picture about Bruce Lee titled Birth of the Dragon. On September 8, 2015, Kylin Network sued Bliss and attorney Bennett Fidlow concerning the acquisition of rights to Birth of a Dragon. On October 20, 2015, the trial court dismissed the case against Bliss with prejudice at Kylin Network's request. Bliss and Kylin Network entered into a settlement agreement as of September 28, 2016. According to plaintiffs, in December 2016, Leo Shi Young (Young), a Kylin Pictures executive and officer, made defamatory statements at a press conference in China about the parties' history producing Birth of the Dragon and another film titled The King's Daughter. Two Chinese-language articles reported on the press conference.
Plaintiffs alleged as the basis for the defamation claim that in a December 26, 2016 article in Sina Entertainment News: (1) "Defendants falsely describe Bliss 'as being "a shell company that doesn't invest and only seeks to gain profits;"'" (2) Defendants "states [sic] that Ms. Han 'definitely functions as someone who profits the most without putting in a single cent;'" (3) "Defendants further state that Ms. Han's involvement with The King's Daughter 'was all a set up;'" (4) "With respect to Birth of the Dragon, Defendants state that they 'knew right from the beginning [Ms. Han] was a swindler[,]' referring to the dispute regarding the acquisition of that film's rights;" and (5) Defendants "hypothesize that 'she probably would have split the money [from said alleged swindle] without the movie being ever made.'"
Plaintiffs also based their defamation claim on allegations that Yiyu Yule (Yiyu Entertainment) published an article on December 29, 2016 titled "Headline! Exclusive insight into Wei Han steering Kylin towards an American scam." The article quoted "'the person in charge at Kylin Pictures'" who said "that Bliss and Fidlow (the other defendant in the prior action) set up a scam for 'Kylin to fall into their trap;' that the alleged scam 'was undertaken to increase the position and benefits of Bliss;' and that 'Bliss seems to be the only party which stands to benefit from it all—why?'" Plaintiffs attached the translated articles to their complaint. B. Defendants' Anti-SLAPP Motion
Plaintiffs' translations were not certified. In opposition to defendants' special motion to strike, plaintiffs included certified English translations. The differences between the versions are not material here.
Defendants filed their anti-SLAPP motion on February 7, 2017, asserting the defamation cause of action arose from defendants' protected speech and citing section 425.16, subdivisions (e)(3) and (4). Defendants argued they called the press conference to address a dispute related to a different motion picture—Hacksaw Ridge. In 2016, the parties were disputing the removal of defendants' screen credit from the opening sequence of the Chinese version of Hacksaw Ridge. The statements about Birth of a Dragon and The King's Daughter were back story to the Hacksaw Ridge dispute. Defendants argued the allegedly defamatory statements were made in connection with a public issue or an issue of public interest because Hacksaw Ridge was a very successful motion picture, the public is interested in screen credit disputes, and the two articles reporting on the press conference were republished many times.
These portions of the anti-SLAPP statute protect "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 "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." (§ 425.16, subds. (e)(3), (4).)
Defendants sued Bliss in Shanghai, China in December 2016 seeking restoration of the screen credit and monetary damages.
Plaintiffs countered they were not in the public eye, the disputed statements concerned private business disputes between the parties that did not affect a substantial number of people, and the statements did not contribute to any ongoing discussion or debate.
On April 7, 2017, the trial court granted defendants' motion. The trial court found that motion pictures are "subjects on which the public undoubtedly takes an interest" and "the dispute which Defendants aired to the press conference concerned one already-released major motion picture (i.e. Mel Gibson's Hacksaw Ridge), and two others soon to be released." The trial court concluded "the private business dispute concerned the production of a very public thing. There is very little that is private about the movie business." The trial court also found plaintiffs failed to meet their burden of establishing a probability they would prevail on their defamation claim.
III. DISCUSSION
"The anti-SLAPP statute, section 425.16, provides a procedure for expeditiously resolving 'nonmeritorious litigation meant to chill the valid exercise of the constitutional rights of freedom of speech and petition in connection with a public issue.'" (FilmOn.com v. DoubleVerify, Inc. (2017) 13 Cal.App.5th 707, 714 (FilmOn.com).) The first step in analyzing the applicability of the anti-SLAPP statute "requires the court to decide 'whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity.'" (Id. at p. 715.) The defendant filing the anti-SLAPP motion has the burden of showing that "the acts of which the plaintiff complains were taken 'in furtherance of the [defendant's] right of petition or free speech . . . in connection with a public issue. . . .'" (Ibid.) We review the anti-SLAPP analysis de novo. (Ibid.) We "consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." (§ 425.16, subd. (b)(2).)
The anti-SLAPP statute defines an "act in furtherance of a person's right of petition or free speech . . . in connection with a public issue" to include: "(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." (§ 425.16, subd. (e).) The parties do not dispute that the statements were made in a place open to the public or in a public forum. Rather, the crux of their dispute is whether the acts were "in connection with an issue of public interest." A. Categories of Statements Concerning Issues of Public Interest
Starting with Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913 (Rivero), courts have identified "three nonexclusive and sometimes overlapping categories of statements that have been found to encompass an issue of public interest under the anti-SLAPP statute." (FilmOn.com, supra, 13 Cal.App.5th at p. 717 [citing and categorizing numerous cases].) The first category includes statements that "concerned a person or entity in the public eye." (Rivero, supra, 105 Cal.App.4th at p. 924.) The second category encompasses statements about "conduct that could directly affect a large number of people beyond the direct participants." (Ibid.) The third category comprises statements on "a topic of widespread, public interest." (Ibid.) "'Courts have adopted these categories as a useful framework for analyzing whether a statement implicates an issue of public interest and thus qualifies for anti-SLAPP protection.'" (FilmOn, supra, 13 Cal.App.5th at p. 717.)
In distinguishing between public and private interests, courts have also considered the following principles: "'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 speaker's conduct should be the public interest rather than a mere effort "to gather ammunition for another round of [private] controversy . . . ." [Citation.] Finally, . . . [a] person cannot turn otherwise private information into a matter of public interest simply by communicating it to a large number of people.'" (FilmOn.com, supra, 13 Cal.App.5th at p. 718.)
In performing this analysis, we are mindful that section 425.16 is to be construed broadly and governs private communications so long as they concern issues of public interest. An issue of public interest need not be significant; it need simply be "one in which the public takes an interest." (FilmOn.com, supra, 13 Cal.App.5th at p. 717; Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1039, 1042 (Nygard).) B. The Allegedly Defamatory Statements
Before deciding whether the acts of which plaintiffs complain were in connection with an issue of public interest, we need to define what those acts were. "Critical to our 'public interest' determination is identification of the specific speech that is the subject of [the plaintiff's] claims." (Dual Diagnosis Treatment Center, Inc. v. Buschel (2016) 6 Cal.App.5th 1098, 1104 (Dual Diagnosis).) "This court independently determines what acts form the basis for plaintiffs' claims." (Tamkin v. CBS Broadcasting, Inc. (2011) 193 Cal.App.4th 133, 143 (Tamkin).)
As detailed above, plaintiffs' complaint specifies the allegedly defamatory statements concerning The King's Daughter and Birth of the Dragon from the two articles reporting on the 2016 press conference. Defendants contend the specific speech at issue goes beyond those statements because the purpose of the press conference was to address the screen credit deleted from the Chinese-language version of Hacksaw Ridge released in China. Defendants argue that "the gravamen" of plaintiffs' lawsuit is the screen credit dispute and the "back story" of that dispute.
Defendants' attempt to expand the boundaries of the speech at issue in plaintiffs' defamation claim is unavailing. Plaintiffs' defamation claim does not mention Hacksaw Ridge or the screen credit dispute; it focuses on the statements about plaintiffs' involvement with the other two films.
Further, the record casts doubt on defendants' argument that the allegedly defamatory statements were merely context or back story for the Hacksaw Ridge screen credit dispute. The first article in which the statements appeared starts with one brief paragraph mentioning the screen credit dispute and one brief paragraph about the parties having "previous differences," and then states that Young "disclosed . . . the reason behind the repeated delay of The King's Daughter . . . and also elaborated on the bad blood between Kylin and Bliss." The rest of the article—eighteen paragraphs—details issues with the other two films and does not mention Hacksaw Ridge or the screen credit dispute. Indeed, the title of the article is "Kylin Pictures discloses full story behind the delay of 'The King's Daughter' starring Fan Bing Bing," emphasizing that Hacksaw Ridge was not the point of the article or what the writer took away from the press conference.
The second article is entitled "Headline! Exclusive insight into Wei Han steering Kylin towards an American scam," again not highlighting Hacksaw Ridge. The article begins: "The person in charge at Kylin Pictures elaborates in a shocking revelation on the three-year long history of unpleasant collaboration with Wei Han, . . . ." The article refers in one sentence to a "blood battle" on Hacksaw Ridge and then continues for 21 paragraphs about the alleged scam involving Birth of the Dragon before mentioning the screen credit dispute, which it then discusses for five paragraphs, concluding with a paragraph about Birth of the Dragon.
The fact that a publication addresses a topic in addition to the disputed statements does not necessarily draw that topic into the anti-SLAPP analysis. (Dual Diagnosis, supra, 6 Cal.App.5th at p. 1105 [electronic newsletter that included disputed statements also referred and linked to newspaper article about topic that was not the subject of plaintiff's claims].) Rather, there must be "'some degree of closeness'" between allegedly defamatory statements and the matter of public interest. (FilmOn.com, supra, 13 Cal.App.5th at p. 718.) Here, the headlines, focus, and weight of the articles were about the other two films, not the Hacksaw Ridge screen credit dispute. If anything, the gravamen of Young's comments as reported in the articles was The King's Daughter and Birth of the Dragon. And the allegedly defamatory statements were about plaintiffs' conduct concerning financing and rights acquisition for those films. That the purpose of calling the press conference may have been to discuss the screen credit dispute does not expand plaintiffs' defamation claim based on statements about the other two films to also encompasses the screen credit dispute. C. The Issue of Public Interest
Returning to the question of public interest, defendants contend that the allegedly defamatory statements fall into all three of the Rivero categories for identifying statements concerning an issue of public interest.
1. Statements Concerning Person or Entity in the Public Eye
Defendants maintain plaintiffs are in the public eye due to their work in the Chinese film industry and Hollywood. In support of their anti-SLAPP motion, defendants performed an Internet search using plaintiffs' names as search terms and submitted the results with their motion: a biography of Han posted on the Asia Society of Southern California Web site; two IMDb (Internet Movie Database) pages for plaintiffs; a three-paragraph article dated May 16, 2016 about plaintiffs' launch of a $150 million film fund; and a January 25, 2017 article about the Chinese lawsuit defendants had filed against Bliss over the Hacksaw Ridge credit, which does not mention Han and was published after the 2016 press conference. Plaintiffs assert Han plays a role behind the scenes and that she and her company are not well-known.
Usually this category addresses people who are celebrities or the target of extensive media coverage. (Rivero, supra, 105 Cal.App.4th at 924; FilmOn.com, supra, 13 Cal.App.5th at p. 717.) The record does not show that plaintiffs were in the public eye at the time of the disputed statements or now. Based on the record, plaintiffs appear to be less known than the plaintiffs in Albanese v. Menounos (2013) 218 Cal.App.4th 923, where the plaintiff was a celebrity stylist who had appeared on television and had an extensive social media presence, and in D.C. v. R.R. (2010) 182 Cal.App.4th 1190 (D.C.), where the plaintiff performed publicly as an actor and singer. In both cases, the court rejected the argument that because of the plaintiff's public profile, anything said about the plaintiff involved a public issue. (Albanese v. Menounos, supra, 218 Cal.App.4th at p. 936; D.C., supra, 182 Cal.App.4th at p. 1229.) The defendants here submitted nothing like the evidence in Nygard showing "extensive interest" in the plaintiff (Nygard, supra, 159 Cal.App.4th at p. 1042), or the evidence in Daniel v. Wayans (2017) 8 Cal.App.5th 367 of the defendant's social media clout. (Id. at pp. 387-388 [disputed statement posted to defendant's Twitter account, which had over one million followers]; see also Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1254 [high profile ex-girlfriend of highly successful, well-known professional boxer in public eye]; Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 807-808 [on-screen participant in television game show of significant interest to public and media]; Sipple v. Foundation for Nat. Progress (1999) 71 Cal.App.4th 226, 239 [nationally known political consultant].)
Defendants cite no authority that a person or entity with such a minimal public presence as their Internet search revealed for plaintiffs is in the public eye. On this record, we cannot conclude that plaintiffs are in the public eye.
2. Statements Concerning Conduct Affecting a Large Number of People
Defendants assert in passing that the parties "alleged conduct could 'affect a large number of people'" without identifying those people. This category of statements typically includes matters of governance, elections, or safety that impact many people. (See, e.g., FilmOn.com, supra, 13 Cal.App.5th at p. 717 [summarizing cases]; Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479 [statements in connection with board elections and recall campaigns affecting 3,000 residents]; Macias v. Hartwell (1997) 55 Cal.App.4th 669, 673-674 [statements during union election affecting 10,000 members].) Defendants do not make a showing that plaintiffs' allegedly fraudulent actions in connection with Birth of a Dragon and The King's Daughter affected a sufficiently large number of people.
3. Statements Involving a Topic of Widespread Public Interest
The real dispute is about the third category—whether the allegedly defamatory statements involved a topic of widespread public interest. This was the basis for the trial court's decision that "[m]otion pictures are subjects on which the public undoubtedly takes an interest." Plaintiffs argue that the topic of motion pictures is too broad because the disputed statements were much narrower.
We agree. "Almost any statement, no matter how specific, can be construed to relate to some broader topic." (Dual Diagnosis, supra, 6 Cal.App.5th at p. 1106 [statements about the license status of one substance abuse rehabilitation facility did not concern treatment facilities generally or addiction treatment].) The allegedly defamatory statements here about the parties' particular film financing and rights acquisition conflicts did not concern motion pictures generally.
Defendants do not argue otherwise. Instead, they contend the public is specifically interested in Birth of the Dragon and The King's Daughter because the first is about the martial arts legend Bruce Lee and the second features two movie stars. That may be, but defendants need to show more. They must show " 'some degree of closeness between the challenged statements and the asserted public interest[.]'" (FilmOn.com, supra, 13 Cal.App.5th at p. 718.) The analysis in Dyer v. Childress (2007) 147 Cal.App.4th 1273, 1280, 1284, illustrates the point. There the plaintiff sued for defamation and false light invasion of privacy, alleging that a character in the motion picture Reality Bites was an unflattering representation of himself. In seeking to strike the complaint under the anti-SLAPP statute, the defendants contended the film addressed topics of public interest such as the issues facing Generation X in the 1990s. (Id. at p. 1279.) The court rejected that argument because "the specific dispute concerns the asserted misuse of [the plaintiff's] persona . . . and there is no discernable public interest in [plaintiff's persona.]" (Id. at p. 1280.) The court explained that although the film may address topics of public interest, the "defendants are unable to draw any connection between those topics and [the plaintiff's] defamation and false light claims." (Ibid.)
Similarly, defendants are unable to draw any connection between the public's interest in Bruce Lee and the movie stars and the allegedly defamatory statements about financing and rights acquisition. Plaintiffs' defamation claim in no way mentions or implicates Bruce Lee or the movie stars. This lack of connection is different from the situation in Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th 1337, 1347 (Hall), cited by defendants. That case held that a broadcast interview of Marlon Brando's housekeeper involved a topic of widespread public interest. The plaintiff, though a private individual, was named in Brando's will. (Ibid.) "The public's fascination with Brando and widespread public interest in his personal life made Brando's decisions concerning the distribution of his assets a public issue or an issue of public interest." (Ibid.) Here, the disputed statements did not involve any celebrity.
The nature of the disputed statements—about financing and rights—also make this case different from Tamkin, Daniel, and Brodeur v. Atlas Entertainment, Inc. (2016) 248 Cal.App.4th 665, which addressed claims involving the creative process, something courts are reluctant to tinker with. In Tamkin, a screenwriter used the plaintiffs' names in a draft script for a CSI episode. The court held that act "helped to advance or assist in the creation, casting, and broadcasting of an episode of a popular television show," and noted "the public was demonstrably interested in the creation and broadcasting of that episode, as shown by the posting of the casting synopses on various Web sites and the ratings for the episode." (Tamkin, supra, 193 Cal.App.4th at p. 143.) In Daniel, the making of the defendant's film was an issue of public interest because the defendant was a celebrity and his disputed conduct occurred "during the creative process of molding a theatrical work." (Daniel, supra, 8 Cal.App.5th at pp. 386-387.) In Brodeur, a character in the film American Hustle, set in the 1970s, commented on an article by the plaintiff claiming microwave ovens took the nutrition out of food. (Brodeur, supra, 248 Cal.App.4th at p. 670.) The court determined the plaintiff was a public figure known for articles in the 1970s on health hazards from microwave radiation, and the scene drew on the public interest in the issue at that time. (Id. at pp. 675, 677-678.) The court declined "to dissect the creative process," quoting and citing Tamkin. (Id. at p. 677.) In contrast to these cases, nothing in the disputed statements here implicates the creative process.
Defendants further argue that the press conference and the two articles containing the allegedly defamatory statements are themselves evidence of public interest. According to this reasoning, if there were no public interest, no one would have attended the press conference or written the articles.
However, a showing of just any public interest, no matter how infinitesimal, will not do for purposes of section 425.16, subdivision (e). (FilmOn.com, 13 Cal.App.5th at p. 718 [matter of public interest is "'something of concern to a substantial number of people'"].) Sufficient public interest exists, for example, where there is extensive reporting on the issue by "readily recognizable press outlets." (Id. at p. 720 [disputed issue covered by Fortune, Business Insider, and The Hollywood Reporter].) "Matters receiving extensive media coverage through widely distributed news or entertainment outlets are, by definition, matters of which the public has interest." (Ibid.) Defendants did not submit evidence of media coverage of the films' funding or rights acquisition before the press conference. Nor did they submit evidence about the popularity of the two media outlets—Sina Entertainment News and Yiyu Entertainment— that published the articles, except to say that they are "freely-accessible news websites." Are these publications the Chinese equivalent of The Hollywood Reporter? Are they blogs with small followings? The fact that something is published, especially online, does not make it by definition a matter of public interest. (D.C., supra, 182 Cal.App.4th at p. 1226 ["But not every Web site post involves a public issue"].)
In any event, even if Sina Entertainment News and Yiyu Entertainment are "readily recognizable press outlets" in China or among the Chinese-reading public, that they picked up defendants' alleged statements at the press conference does not alone make the statements a matter of public interest. Publication of information about a private person does not automatically make that information or person a matter of public interest garnering the protection of the anti-SLAPP statute. (Rivero, supra, 105 Cal.App.4th at p. 926 [publication does "not turn otherwise private information into a matter of public interest"]; see also Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1133 ["'those charged with defamation cannot, by their own conduct, create their own defense by making the claimant a public figure'"].) Nor does evidence of further media attention after the two articles' publication satisfy the public interest inquiry. We analyze the public interest as of the date of the acts that form the basis for the plaintiffs' complaint. (D.C., supra, 182 Cal.App.4th at 1229 ["we cannot say that, as of the date of [the disputed statement,] D.C.'s stint in entertainment had garnered public attention"].)
Finally, we note that even if the acts forming the basis for plaintiffs' defamation claim did concern the Hacksaw Ridge screen credit dispute, defendants did not provide evidence of widespread public interest in that dispute. Defendants say that the press conference was "well attended," but only the two articles resulted from the press conference, issuing from free online outlets of indiscernible popularity and readership. Defendants submitted only one additional article about the screen credit dispute dated January 25, 2015, a month after the press conference, suggesting that public interest remained minimal. D. Statements from Court Filings
We are not persuaded by defendants' argument that screen credits are per se an issue of public interest and that Kronemyer v. Internet Movie Database Inc. (2007) 150 Cal.App.4th 941 controls here. The plaintiff in Kronemyer claimed to be an executive producer of the motion picture My Big Fat Greek Wedding. He sued Internet Movie Database Inc. (IMDb) for an order requiring IMDb to identify him as such on the IMDb Web site. The court concluded the dispute raised a matter of public interest because the motion picture "was a topic of widespread public interest" and 35 million people visited IMDb's Web site each month. (Id. at p. 949.) That visitors to IMDb's Web site may be interested in screen credits does not necessarily mean the Chinese public is as well or the American public is interested in screen credits on Chinese releases.
Defendants advance a new argument on appeal—that the allegedly defamatory statements reported in Yiyu Entertainment are protected because they are "based on the contents of Kylin Network's filings in California Superior Court in the 2015 Dragon Lawsuit." The allegedly defamatory statements in that article are: "that Bliss and Fidlow (the other defendant in the prior action) set up a scam for 'Kylin to fall into their trap;' that the alleged scam 'was undertaken to increase the position and benefits of Bliss;' and that 'Bliss seems to be the only party which stands to benefit from it all—why?'"
If this is the case, then these disputed statements cannot be about the Hacksaw Ridge screen credit dispute which did not arise until 2016, long after Kylin Network dismissed the 2015 lawsuit in October 2015.
Defendants do not specify the subdivision of section 425.16 they contend is applicable, but apparently they are referring to subdivision (e)(1) or (e)(2). Under subdivision (e)(1), the anti-SLAPP statute protects activities arising from "any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law." (§ 425.16, subd. (e)(1).) The claim that is the subject of the anti-SLAPP motion must be based on statements "made in official proceedings." (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1114 (Briggs).) Here, plaintiffs base their defamation claim on statements allegedly made at the 2016 press conference (not an official proceeding), not on statements made in the 2015 lawsuit.
Under section 425.16, subdivision (e)(2), the anti-SLAPP statute protects activities arising from "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." A statement falls into this category if it is "'made in connection with an issue being reviewed by an official proceeding.'" (Briggs, supra, 19 Cal.4th at p. 1116, quoting Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1047; see also Cole v. Patricia A. Meyer & Associates, APC (2012) 206 Cal.App.4th 1095, 1120 [statement not covered by subd. (e)(2) because defendants had not shown statement was made while litigation was still pending].) Long before the December 2016 press conference, Kylin Network had dismissed the 2015 lawsuit. Thus, the allegedly defamatory statements were not in connection with an issue being reviewed by a judicial body.
In addition, "a statement is 'in connection with' litigation under section 425.16, subdivision (e)(2) if it . . . is directed to persons having some interest in the litigation." (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1266.) In this context, a person "having some interest in the litigation" does not mean a member of the public interested in the topic. It means "those persons with some involvement in the litigation." (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1368.) The alleged statements at the press conference were directed to the media, not anyone with some involvement in the 2015 lawsuit.
Because defendants have failed to meet their burden under section 425.16, subdivision (b)(1), we need not discuss the second step of the anti-SLAPP analysis. (See Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 261.) We find the trial court erred by granting defendants' special motion to strike, and we vacate the award of attorney fees and costs to defendants.
IV. DISPOSITION
The order granting the special motion to strike is reversed and the order granting defendants attorney fees and costs is vacated. Plaintiffs are entitled to recover their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
We concur:
BAKER, Acting P.J.
MOOR, J.