Opinion
D040532.
10-8-2003
RICHARD P. LORITZ II, Plaintiff and Appellant, v. ANNA M. LINVILLE, Defendant and Respondent.
Richard Loritz II sued Anna Linville for slander per se. Linville filed a special motion to strike pursuant to Code of Civil Procedure section 425.16, commonly called the anti-SLAPP statute. (See Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57 (Equilon).) The court granted the motion and Loritz appealed. We affirm.
All further statutory references are to the Code of Civil Procedure, unless otherwise specified.
FACTUAL AND PROCEDURAL HISTORY
During their seven-year relationship, Linville and Loritz had a child together. On August 4, 1994, Loritz shot at Linville seven times, striking her five times. Loritz is currently serving a 17-year prison sentence for that shooting, having been convicted of attempted murder, assault with a semiautomatic firearm, and corporal injury to a spouse or roommate.
This case concerns statements made on the Sally Jesse Raphael television show. The broadcast concerned young women in abusive relationships. A number of guests, including Linville, discussed their experiences.
Show host Raphael introduced Linville to the audience as follows: "Anna [Linville] is here because she worries about girls because she was one of those girls. For over seven years, she was involved with a guy whom she says abused her and stalked her. And, shes been shot seven times. The shooting was so violent that the bullets tore through her body and left 20 holes in her body. Her arm was nearly amputated and her face has been surgically reconstructed. . . ." (Italics added.)
Loritz filed a complaint for slander per se against Linville, alleging Linville said he committed the crimes of stalking and battery. Linville filed a demurrer and a motion to strike pursuant to sections 425.16, 391, and 128.5 or, in the alternative, to stay and to strike certain sections of the complaint.
In a declaration accompanying the motion to strike, Linville stated she made no slanderous statements on the television show. Raphael, not Linville, said Loritz had stalked her. Linville lodged with the court a videotape of the broadcast, which we have reviewed. She also requested the court take judicial notice of numerous court documents from the numerous actions Loritz filed since his conviction. Among those documents is a letter dated February 12, 2002 from Loritz to Linville, which states in part: "I have not received your Answer for the civil suit I filed against you. If you dont file an Answer, I will move for a default judgment and you will owe the amount of money sought for in my suit. I will be able to attach your wages for the rest of your life. [& para;] The suit is not about money though. What my family wants is the truth and to be part of [our childs] life. . . . We need your help to get my conviction overturned so that I can practice
law. . . . [¶] If you dont help my family, I will file another suit against you for the numerous felonies you committed against me. . . ."
In a declaration accompanying his reply, Loritz stated he had neither abused nor stalked Linville. Loritz submitted as evidence portions of Linvilles testimony at his criminal trial that shows she made numerous telephone calls to him prior to the shooting; a copy of a police report of an instance where Loritz called the police to ask Linville to leave his residence; and photographs of an injuries and a broken chair that Loritz states were caused by Linville pushing him over the chair.
This evidence was attached as exhibits to the complaint.
The court overruled the demurrer, granted the motion to strike pursuant to section 425.16, and denied the motion to strike on the other grounds before it. The court found that Loritz filed the complaint for the improper purpose of forcing Linville to admit she had testified falsely at his criminal trial. The court also found Loritz had failed to establish a probability he will prevail on his claim because (1) Linvilles statement that Loritz had abused her is not likely to be proven false given his conviction for assault; and (2) Loritz cannot prove damages. The court denied Loritzs motion for reconsideration, and judgment was entered in favor of Linville.
DISCUSSION
I. Anti-SLAPP Law
"The anti-SLAPP legislation in section 425.16 was crafted to provide an efficient means of dispatching a plaintiffs meritless claims at the inception of the lawsuit to promote `continued participation in matters of public significance." (Schroeder v. Irvine City Council (2002) 97 Cal.App.4th 174, 183.) Specifically, 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 is to be "construed broadly" (§ 425.16, subd. (a)) "in a manner favorable to the exercise of freedom of speech, not its curtailment." (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1119.)
To decide an anti-SLAPP motion, the court must "engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendants burden is to demonstrate that the act or acts of which the plaintiff complains were taken `in furtherance of the [defendant]s right of petition or free speech under the United States or California Constitution in connection with a public issue, as defined in the statute. [Citation.] If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. . . . [I]n making these determinations, the court considers the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." (Equilon, supra, 29 Cal.4th at p. 67 (discussing section 425.16, subdivision (b)(2).) "Only a cause of action that satisfies both prongs of the anti-SLAPP statute i.e., that arises from protected speech or petitioning and lacks even minimal merit is a SLAPP, subject to being stricken under the statute." (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.)
Both prongs of the anti-SLAPP statute are legal questions to which we apply the de novo standard of review. (Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 474; Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 919 (Rivero).)
II. Right of Free Speech
We first decide whether Linville met her initial burden of making a prima facie showing that Loritzs causes of action arose from conduct implicating Linvilles constitutional right of free speech in connection with a public issue. A defendant meets his or her burden of proving that the complaint arises from protected activity by demonstrating that the act underlying the plaintiffs cause of action fits one of the categories of section 425.16, subdivision (e). (Cotati v. Cash (2002) 29 Cal.4th 69, 78.) Section 425.16, subdivision (e) provides in part: "As used in this section, `act in furtherance of a persons right of petition or free speech under the United States or California Constitution in connection with a public issue includes: . . . (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."
Section 425.16, subdivisions (e)(3) and (e)(4) each require the defendants speech, writing or conduct relate to a public issue or a matter of public interest. After reviewing the cases discussing the public issue requirement, the Rivero court concluded: "None of these cases defines the precise boundaries of a public issue, but in each of these cases, the subject statements either concerned a person or entity in the public eye [citations], conduct that could directly affect a large number of people beyond the direct participants [citations] or a topic of widespread interest [citations]." (Rivero, supra, 105 Cal.App.4th at 924.) In this case, the topic of the show was domestic violence, specifically, the dangers to young women who date abusive men. Domestic violence meets the public issue requirement as a topic of widespread interest: "Domestic violence is an extremely important public issue in our society." (Sipple v. Foundation for Nat. Progress (1999) 71 Cal.App.4th 226, 238 (Sipple); see also M.G. v. Time Warner, Inc. (2001) 89 Cal.App.4th 623, 629 (M.G.).) We reject Loritzs contention that Linvilles statements were not a matter of public interest because they concern the actions of two people and do not impact a broad segment of society. An instance of domestic violence during a discussion of domestic violence is a public issue. (Sipple, supra, at pp. 238-239; see M.G., supra, at p. 629 [rejecting plaintiffs attempt to limit the issue to "the identity of the molestation victims" because the topic of the program was "child molestation in youth sports"].)
Loritz contends Linvilles statements were not made in a public forum because they occurred prior to the airing of the television show. Although section 425.16, subdivision (e)(3) contains a public forum requirement, subdivision (e)(4) does not. Section 425.16, subdivision (e)(4) requires "conduct in furtherance of the exercise of . . . the constitutional right of free speech." In this case, any statements Linville made to television personnel prior to the airing of the broadcast were made in order to prepare the on-air discussion. For that reason, they were made in furtherance of the constitutional right of free speech.
Rapheal made the only direct statement accusing Loritz of abuse and stalking. Loritz contends Linville made statements prior to the broadcast that led to Raphaels on-air statement.
III. Probability of Prevailing
We next determine whether Loritz had a reasonable probability of prevailing in his slander per se suit. "In order to establish the necessary probability of prevailing, [a] plaintiff [is] required both to plead claims that [are] legally sufficient, and to make a prima facie showing, by admissible evidence, of facts that would merit a favorable judgment on those claims, assuming plaintiffs evidence were accepted. [Citations.] This burden is somewhat akin to that required to resist a nonsuit [citation], or to move for summary judgment. [Citation.]
"When assessing the plaintiffs showing, the court must also consider evidence that the defendant presents. [Citation.] The court does not, however, weigh that evidence against the plaintiffs, in terms of either credibility or persuasiveness. Rather, the defendants evidence is considered with a view toward whether it defeats the plaintiffs showing as a matter of law, such as by establishing a defense or the absence of a necessary element." (1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 584-585.)
Civil Code section 46 provides in part: "Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which: [¶] 1. Charges any person with crime, or with having been indicted, convicted, or punished for crime; . . . ." Slander per se does not require proof of damages. (Clay v. Lagiss (1956) 143 Cal.App.2d 441, 448.)
As to the stalking allegation, Raphael, not Linville, made the statement that Loritz stalked Linville. Linville made no such statement on the broadcast. Loritz contends Raphaels statement should be attributed to Linville because Linville must have told Raphael that Loritz stalked her and Linville failed to correct Raphael on the air. However, Loritz failed to present any evidence of Linvilles pre-broadcast statements. "[A] party cannot simply rely on the allegations in its own pleadings, even if verified, to make the evidentiary showing required" to meet is burden under section 425.16. (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 656, disapproved on other grounds in Equilon, supra, 29 Cal.4th at pp. 68, fn. 5.) Linvilles failure to correct Raphael is not evidence that Linville accused Loritz of stalking her.
As to the abuse allegation, Loritz stands convicted of attempted murder, assault with a semiautomatic firearm, and corporal injury to a spouse or roommate. The trial court correctly concluded Loritz could not prevail as to the abuse allegation because he cannot prove the statement is false. (Morningstar, Inc. v. Superior Court (1994) 23 Cal.App.4th 676, 686 [plaintiff must prove statement is false].) Loritz has failed to make a prima facie showing that he would prevail.
DISPOSITION
The judgment is affirmed. Appellant is to bear costs on appeal.
WE CONCUR: BENKE, Acting P. J. and McINTYRE, J.