Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 19232, Super. Ct. No. 19234
CANTIL-SAKAUYE, J.
Plaintiff Frederick W. Penney sued defendant Jeffrey Isbell for defamation and intentional infliction of emotional distress and sought a civil restraining order and injunction prohibiting Isbell from harassing him. (Code Civ. Proc., § 527.6.) Isbell opposed the application for restraining order and injunction and filed a special motion to strike Penney’s complaint under the anti-SLAPP statute. (§ 425.16.) The trial court issued the requested restaining order and injunction prohibiting harassment and denied Isbell’s special motion to strike. Isbell filed appeals in each case. We have consolidated the appeals on our own motion. We shall dismiss as moot the appeal from the restraining order and injunction prohibiting harassment. We shall affirm the order denying Isbell’s special motion to strike.
Penney’s complaint named both Jeffrey Isbell and his wife Marina Isbell, but Marina Isbell was later dismissed without prejudice. Marina Isbell was not named in Penney’s request for a restraining order and injunction. She is not a party to this appeal. Our reference to Isbell in this opinion is to Jeffrey Isbell.
Hereafter, undesignated statutory references are to the Code of Civil Procedure.
SLAPP stands for strategic lawsuit against public participation and section 425.16 is often referred to as the anti-SLAPP statute. (See Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57.)
An order granting an injunction, including an injunction obtained pursuant to section 527.6, is appealable as a final judgment on the merits (§ 904.1, subd. (a)(6); see Schild v. Rubin (1991) 232 Cal.App.3d 755) and an order denying a special motion to strike is appealable under section 425.16, subdivision (i).
FACTUAL AND PROCEDURAL BACKGROUND
We take our summary of the facts from the declarations of the parties filed in connection with the request for restraining order and motion to strike. The ruling on the restraining order reflects “the parties submitted the matter on the basis of the declarations in the file.” Similarly, the trial court decided the motion to strike based on the written papers submitted and argument of counsel. (§ 425.16, subd. (b)(2).)
Isbell is a former client of Penney’s law firm. Penney represented Isbell in a wrongful death action following the death of Isbell’s daughter Kristiana in an automobile accident. The lawsuit was settled in May 2004 with a recovery for Isbell, out of which Penney subtracted his fees and costs.
In July 2005, Isbell wrote a letter to Penney in which he stated a realization that he and his wife “were victimized not only by [Kristiana’s] death, but by those who make their livings dealing with such tragedies.” Isbell stated he “hope[d] to redress some of those wrongs, and I am beginning that process with this letter.” Isbell went on to describe discussions he had with other families who have gone through a similar process and their “shock to the fact that [Penney] took a sizable sum of money from us that [he] did not recover.” Isbell expressed his opinion “and the opinions of the other professionals we’ve contacted,” that Penney had failed to honorably help them. Isbell complained about the adequacy of the settlement amount and stated that “[a]fter conferring with many respected professionals, I have concluded that we did not receive the best advice in dealing with the aftermath of this tragedy. I have decided not to let this pass as I’ve grown tired of being a victim.” He requested the files in his daughter’s case “so that I may make an informed decision as to the proper course of action to take.”
Penney wrote Isbell a responding letter in which he expressed surprise to hear of Isbell’s concerns. Penney briefly described his investigation of the case and the limited potential for recovery against Placer County and the family of the driver. Penney reminded Isbell that he had agreed “it was worth settling the case instead of continuing to run up the costs[]” and that another personal injury lawyer had agreed with their assessment that it was best to settle. Penney said he was “sorry that you are upset that I was paid a reduced rate for all the work I put into this case.” He agreed to send a copy of the file to Isbell as soon as possible.
At the end of December 2005, Isbell wrote a second letter to Penney. The letter began: “After reviewing the case file that I received from you, I have decided to pursue a course of remediation due to your handling of our case. I would prefer to deal with you personally in this matter and not involve outside representation.” Isbell repeated his initial trust of Penney, explained what his expectations of Penney’s representation had been, described the stress and financial difficulties his family had experienced, and then informed Penney of his conclusion, after review of the case files, that Penney had only looked after his own interests. As Isbell put it: “[Y]our family profited from my daughter’s killing because you paid yourself with money that you did not recover. You used our guaranteed payout from the Belotti’s insurance to go on a half-hearted search for a pot of gold, and when it became apparent you would have to work harder for it you decided to move on to another case. One of your peers in the legal community described your handling of this case as a callous and despicable way of doing business.” Isbell disputed Penney’s claim that Isbell had wanted to end the case. Isbell contended Penney did not sufficiently investigate the case and that his family was “continuing to pay dearly for your lack of due diligence.” The final paragraph of Isbell’s letter stated:
“I am asking that you meet with me and come up with a solution to appease my dissatisfaction with your handling of this case and its outcome. If we can’t find a solution together I will work to craft an outcome that satisfies our need for fair treatment in this matter. Our family was victimized by Stephanie Belotti’s actions and we accept that as a foolish act by a [sic] immature teenager and compounded by a known dangerous road condition that still exists today. It was further compounded by the fact that her parents had her woefully underinsured and it was your job to take them to task for that. Your actions in the aftermath that [sic] tragedy were willful, callous, and self-serving. As hard as I have tried to get beyond this I just can’t, and it’s become apparent that the only way to find peace is to take the actors to task.”
Penney did not reply to Isbell’s second letter.
On Sunday April 16, 2006, Isbell displayed a large sign on the back of a pickup truck parked outside the church which Penney attended. The sign read:
“FRED PENNEY
KRISTIANA ISBELL’S FAMILY IS $ 150K IN DEBT WHILE YOU PROFITED FROM HER KILLING! WHOSE BEST INTERESTS WERE REALLY SERVED? YOU’VE IGNORED OUR REQUESTS TO DISCUSS THIS WITH YOU. WHY? IT’S NOT TOO LATE TO FIX THIS FRED.”
Four days later, Penney sued Isbell for defamation and intentional infliction of emotional distress and filed a request for an order stopping harassment. Penney declared both Isbell’s December letter and the sign “caused [him] substantial emotional distress and . . . seriously alarmed, annoyed and harassed me.” Penney stated the presentation of the sign at his church “caused [him], [his] wife, and [his] children to be the subject of great embarrassment and scorn.” He believed Isbell was planning to display the sign at other locations, including his home, workplace, other businesses, church or his children’s school. Penney described the sign as “threatening.”
In response to the request for restraining order, Isbell filed a declaration stating he lacked any criminal record, had never been previously accused of any type of harassment, had never been the subject of any restraining order, had never threatened Penney or any member of his family with physical harm and that he had never done anything to cause Penney emotional harm other than to display the sign described by Penney, which Isbell considered an expression of his First Amendment rights.
Isbell filed an answer generally denying the allegations of Penney’s complaint and subsequently filed a special motion to strike the complaint pursuant to the anti-SLAPP statute. (§ 425.16.) In support of his motion, Isbell filed a declaration stating his dissatisfaction with Penney’s legal representation. Isbell declared the purpose of his two letters to Penney was to request a meeting with Penney, that Penney refused to meet or engage in any discussion, and that “[i]n utter frustration over being ignored . . ., I put a sign on a truck parked in a public area where Mr. PENNEY would see it, in the hopes that he would finally have a meeting with me.” Isbell stated the sign was an expression of his First Amendment rights and reflected his belief that Penney did not properly represent his interests. Isbell denied threatening Penney and stated he never did anything “intended or likely to cause” Penney emotional distress. Isbell submitted a declaration of his attorney regarding Penney’s website for and advertisement of his law firm.
The trial court issued a written ruling granting Penney’s request for an injunction against harassment to be effective up until December 31, 2006. The trial court found no violence or credible threat of violence by Isbell, but concluded there had been a course of conduct constituting harassment. Specifically, while the trial court did not find the two letters written by Isbell to be harassing on their own, when coupled with the displayed sign, they took on a meaning “which shows that there was a continuity of purpose and motive.” The trial court ruled the sign “was clearly harassing, and was not privileged.” The trial court found the statements on the sign were “unequivocally designed to injure the reputation of Mr. Penney as an attorney, as well as to bring into question his ethics and professional loyalty to his client.” As such, the statements appeared to be “libelous per se.”
The trial court subsequently denied Isbell’s anti-SLAPP motion, concluding Isbell had failed to show his letters and sign were protected speech or conduct. The trial court stated, among other things, that Isbell had not shown his sign concerned an issue of public interest.
DISCUSSION
I.
Isbell’s Appeal Of The Restraining Order and Injunction Prohibiting Harassment Under Section 527.6 Is Moot
The injunction prohibiting harassment issued by the trial court expired by its own terms on December 31, 2006. Because the injunction has been extinguished, no appellate relief can be granted and all issues surrounding it are moot. (Simi Corp. v. Garamendi (2003) 109 Cal.App.4th 1496, 1503 [“A case becomes moot when a court ruling can have no practical impact or cannot provide the parties with effective relief”].)
Citing to the rule that we may exercise our discretion to resolve moot issues where a matter of continuing public interest that is likely to recur is involved (see Liberty Mut. Ins. Co. v. Fales (1973) 8 Cal.3d 712, 715-716; Schraer v. Berkeley Property Owners’ Assn. (1989) 207 Cal.App.3d 719, 728), Isbell asks this court to consider whether the trial court improperly applied the standards of section 527.6 because this case raises a novel issue regarding the interpretation of “course of conduct” as part of the definition of harassment in section 527.6, subdivision (b)(3), which issue Isbell claims is certain to rise again. Specifically, Isbell claims the trial court’s ruling combines innocent and non-harassing acts with a single harassing act in order to establish the requirements there be “a knowing and willful course of conduct . . . that serves no legitimate purpose.” (§ 527.6, subd. (b), italics added by Isbell.) We disagree that any such novel issue is presented. We decline to address the merits of Isbell’s appeal and shall dismiss the appeal as moot.
II.
The Trial Court Properly Denied Isbell’s Anti-SLAPP Motion
The Legislature enacted the anti-SLAPP statute (§ 425.16) to address “a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” (§ 425.16, subd. (a).) Under this statute, 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 or California Constitution in connection with a public issue,” is 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.” (Id., subd. (b)(1).)
“Section 425.16 posits . . . 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. (§ 425.16, subd. (b)(1).) ‘A defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause fits one of the categories spelled out in section 425.16, subdivision (e)’ [citation]. If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim. [Citations.]” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) “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.” (Id. at p. 89.)
On appeal, “[w]e review the trial court’s rulings on an anti-SLAPP motion de novo.” (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212; see Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 22.) “This includes whether the anti-SLAPP statute applies to the challenged claim. [Citation.]” (Thomas v. Quintero (2005) 126 Cal.App.4th 635, 645.)
As relevant here, section 425.16 applies to and protects statements and writings “made in a place open to the public or a public forum in connection with an issue of public interest” (§ 425.16, subd. (e)(3)) 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, subd. (e)(4).)
“A public forum is a place open to the use of the general public ‘“for purposes of assembly, communicating thoughts between citizens, and discussing public questions.”’ [Citations.]” (Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1130.) Here the evidence established Isbell parked his truck “outside” of Penney’s church. There is nothing in the record suggesting the truck was on church property, rather the only reasonable inference from the declarations submitted to the trial court is that the truck was parked on a public street adjacent to the church. “[A] public street is a ‘traditional public forum.’” (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1247.)
The question narrows to whether Isbell’s sign concerned an “issue of public interest.”
Section 425.16 does not define an “issue of public interest,” but this term “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. [Citations.]” (Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479.) This broad construction is required in order to “encourage participation by all segments of our society in vigorous public debate related to issues of public interest. [Citations.]” (Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 808.)
In Weinberg v. Feisel, supra, 110 Cal.App.4th at pages 1132-1133, we described the attributes of “an issue of public interest.” Such a matter is more than one of “mere curiosity” and is an issue of concern “to a substantial number of people.” (Id. at p. 1132.) In addition, “there should be some degree of closeness between the challenged statements and the asserted public interest” (ibid.), and the focus of the speaker’s conduct should be the public interest rather than an effort to further a private controversy. (Id. at pp. 1132-1133.) Private information does not become an issue of public interest simply because it is communicated to a large number of people. (Id. at p. 1133.)
A few case examples may be helpful.
In Weinberg v. Feisel, supra, 110 Cal.App.4th 1122, the plaintiff and defendant were both token collectors. The defendant accused the plaintiff in published ads of having stolen a token from the defendant’s collection. The plaintiff sued for defamation and emotional distress, and the defendant brought an anti-SLAPP motion. (Id. at p. 1126.) The defendant contended his statements accused the plaintiff of criminal activity, which was a matter of public interest. (Id. at p. 1134.) We disagreed. We noted that there were no charges pending against the plaintiff, that the defendant took no action intended to result in a criminal investigation or prosecution, and that defendant was not pursuing civil charges against the plaintiff. (Id. at p. 1135.) Moreover, the plaintiff was not a public figure or someone who had thrust himself into a public issue. In light of these circumstances, we determined the fact that the defendant accused the plaintiff of criminal conduct did not make the accusations a matter of public interest. (Ibid.)
In Thomas v. Quintero, supra, 126 Cal.App.4th 635, the court concluded the conduct of a tenant who was demonstrating and leafleting against a landlord’s alleged property management practices was public conduct made in connection with an issue of public interest within the meaning of section 425.16, subdivision (e)(3). (Thomas v. Quintero, supra, at p. 657.) The court emphasized the defendant tenant “did not act alone, but in conjunction with planned demonstrations against [the landlord] by a nonprofit group purportedly dedicated to upholding tenant rights. Thus, while [defendant’s] private interests were certainly in issue, there were much broader community interests at stake in the protests.” (Id. at p. 661.) The protest activities were not an end to themselves, but were coupled with a genuine effort to engage the public in discussing and finding a solution to the disputes. (Ibid.)There was a direct call for public involvement in an ongoing controversy, dispute or discussion regarding the landlord’s property management practices. (Ibid.) The court contrasted this situation with its earlier decision in Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107 (Du Charme), which had rejected a claim that postings on a labor union’s website disclosing the union’s business manager had been terminated by the union for financial defalcations were protected under section 425.16, subdivision (e)(3), because the postings did not seek to encourage public participation in any controversy, debate or discussion. (Du Charme, supra, at p. 107.)
In Terry v. Davis Community Church (2005) 131 Cal.App.4th 1534, this court concluded defendants’ publication of a report accusing a youth group leader of being a sexual predator who engaged in an inappropriate sexual relationship with a minor female church member was protected communication regarding an issue of public interest. (Id. at pp. 1545-1551.) We stated, “the communications clearly involved issues of public interest, because they involved the societal interest in protecting a substantial number of children from predators, and the matter was referred to [law enforcement] for investigation.” (Id. at p. 1547.) We noted the report called on the church to update its sexual harassment policy, clarify appropriate boundaries for interpersonal conduct, and involve members of the youth group and their parents in the selection of new youth leaders. (Id. at pp. 1547-1548.) Discussion of the matter included proposals of methods to keep sexual predators out of church leadership positions. (Id. at p. 1548.) Thus, “plaintiffs’ actions gave rise to an ongoing discussion about protection of children, which warrants protection by a statute that embodies the public policy of encouraging participation in matters of public significance.” (Id. at p. 1550.)
Isbell relies particularly on three additional cases.
In Fontani v. Wells Fargo Investments, LLC (2005) 129 Cal.App.4th 719, disapproved on another ground in Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 203, footnote 5, a securities dealer sued his former employer for, among other things, defamation and interference with prospective business advantage after the employer filed a report with the National Association of Securities Dealers (NASD) describing its reasons for terminating the dealer’s employment. (Id. at p. 725.) The reviewing court concluded the employer’s anti-SLAPP motion to strike such causes of action should have been granted by the trial court. (Id. at pp. 725, 732-733.) In concluding the NASD filing concerned a matter of public interest, the court focused on the fact that the employer’s statements to the NASD alleging the dealer misrepresented information when selling annuities concerned conduct that could directly affect a large number of people, in this case, a significant portion of the investing public because, if true, the misrepresentation had “the potential to affect not just Fontani’s individual customers, but all those in the annuity market.” (Id. at pp. 732-733.)
In Carver v. Bonds (2005) 135 Cal.App.4th 328, a podiatrist sued a newspaper, two reporters and two professional athletes for defamation and inference with prospective business advantage based on statements in a published article. (Id. at p. 332.) The court concluded the article concerned an issue of public interest. (Id. at p. 343.) The court explained: “The article warned readers not to rely on doctors’ ostensible experience treating professional athletes, and told what it described as ‘a cautionary tale’ of plaintiff exaggerating that experience to market his practice. Since the statements at issue served as a warning against plaintiff’s method of self-promotion, and were provided along with other information to assist patients in choosing doctors, the statements involved a matter of public concern.” (Id. at p. 344.)
Finally, in Gilbert v. Sykes, supra, 147 Cal.App.4th 13, this court concluded a Website that related Gilbert’s experiences with plastic surgery performed on her by Dr. Sykes, a prominent and nationally recognized plastic surgeon, as well as providing information and advice for those considering plastic surgery, concerned a matter of public interest within the meaning of section 425.16. (Gilbert v. Sykes, supra, at pp. 22-24.) Gilbert’s Website contributed to public discussion of the benefits and risks of plastic surgery by discussing her “nightmare” results from a surgery done by a well-respected plastic surgeon (id. at p. 23) and by containing advice, information, and a contact page where readers could share their own experiences. (Id. at p. 24.)
While we hesitate to oversimplify, these cases teach that statements encouraging and promoting the public discussion of current issues of broad concern that potentially affect significant numbers of people, as well as statements disseminated as part of what could be described as consumer protection information and advice, are generally considered statements involving issues of public interest within the meaning of the anti-SLAPP statute. In contrast, statements involving purely personal controversies unconnected to any larger discussion of general societal or consumer issues are not statements involving issues of public interest.
Applying these principles, we conclude the statements on Isbell’s sign did not involve an issue of public interest. Contrary to Isbell’s claim on appeal, the statements did not encourage the public discussion of attorney ethics or malpractice. The sign did not even identify Penney as an attorney and made no attempt to connect its allegations of improper conduct by Penney to any broader issue of attorney misconduct, ethics or compensation. There was no evidence the sign generated any public discussion of attorney practices. The sign did not convey any consumer information or advice regarding the employment of attorneys. The purpose of the sign was simply, as Isbell admitted in his declaration submitted with his special motion to strike, to force a meeting with Penney. The focus of Isbell’s statements was not on any public controversy or discussion, but on his purely personal controversy with Penney. Just because such private controversy involved an attorney did not make the statements a matter of public interest. (See also Kurwa v. Harrington, Foxx, Dubrow & Canter, LLP (2007) 146 Cal.App.4th 841, 848-849 [just because health care is a matter of public interest does not make private dispute involving doctors and health maintenance organization an issue of public interest]; Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 924–925 [just because statement at issue concerned an unlawful workplace activity engaged in by an employee at a publicly financed institution, it was not necessarily of “public interest”].)
As Isbell failed to make the threshold showing that Penney’s complaint arose from activity protected under the anti-SLAPP statute, we need not reach the second prong of analysis, whether Penney demonstrated a probability of prevailing on his claims. (See Navellier v. Sletten, supra, 29 Cal.4th at pp. 88-89.)
The trial court did not err in denying Isbell’s special motion to strike.
DISPOSITION
The appeal in case No. C053824 is dismissed. The order denying appellant’s special motion to strike in case No. C053829 is affirmed. Costs on appeal are awarded to respondent in both cases. (Cal. Rules of Court, rule 8.278(a)(1).)
We concur: BLEASE, Acting P.J., BUTZ, J.