Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from an order of the Superior Court of Orange County, Gregory Munoz, Judge, Super. Ct. No. 06CC01968.
Jeffrey R. Pratt, in pro. per., for Plaintiff and Respondent.
Philip A. Putman for Defendant and Appellant Elizabeth McMahon.
Arnold A. McMahon, in pro per., for Defendant and Appellant Arnold A. McMahon.
OPINION
IKOLA, J.
Defendants Elizabeth McMahon and Arnold A. McMahon (the McMahons) appeal from an order denying their special motion to strike libel and invasion of privacy causes of action asserted by plaintiff Jeffrey R. Pratt. The McMahons fail to show the allegedly defamatory statements are protected by the anti-SLAPP statute. (Code Civ. Proc., § 425.16, subd. (e).) We affirm.
“SLAPP is an acronym for ‘strategic lawsuit against public participation.’” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.)
All further statutory references are to the Code of Civil Procedure.
FACTS
In the operative first amended complaint, Pratt asserted causes of action for libel, libel per se, invasion of privacy, and permanent injunction against the McMahons. He alleged he was an attorney formerly with the law firm of Peters & Freedman LLP (the law firm), representing Palacio del Mar homeowners association in litigation against the McMahons.
Pratt alleged the McMahons posted a defamatory article to a Web site they controlled. He attached a copy of the article to his complaint. The article’s headline read, “Hired Guns at Trial — Peters & Freedman and Palacio del Mar given $227,000 by the Orange County Courts after they provided false testimony in court.” The article began, “Peters & Freedman (Simon Freedman, David Peters and Jeffrey Pratt) . . . provided false testimony at the trial to get $227,000 in October 2004 from a homeowner victim they targeted.” It continued, “Judge David Chafee helped the Peters & Freedman lawyer Jeffrey Pratt suppress evidence, intimidate the lawyers representing the victims and the victim, lied in the information he entered into the trial transcripts and coached Jeffrey Pratt during trial.” It concluded, “The California courts should overturn this taking of a citizen’s home by Peters & Freedman lawyers and the Palacio del Mar board who lie in court.”
The McMahons filed an anti-SLAPP motion to strike the complaint, which the court denied. It found the McMahons showed the statements arose from activity protected by the anti-SLAPP statute. But it also found Pratt showed a probability of prevailing on his causes of action.
DISCUSSION
The order denying the McMahons’ anti-SLAPP motion to strike the complaint is directly appealable. (§ 425.16, subd. (i).) It is subject to our independent review. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325.)
The anti-SLAPP statute provides, “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 shall be subject to a special motion to strike.” (§ 425.16, subd. (b)(1).)
The McMahons bear the initial burden of establishing the challenged causes of action are “based on [their] protected free speech or petitioning activity.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89 (Navellier).) If the McMahons meet their burden, Pratt then bears the burden to “establish[] that there is a probability that [it] will prevail on the claim.” (§ 425.16, subd. (b)(1).) The parties agree Pratt’s causes of action arise from the allegedly defamatory statements. The issue is whether those statements are protected by the anti-SLAPP statute.
Though the parties briefed this issue below, they did not brief it on appeal initially. At our invitation, they filed supplemental briefs on the issue.
To meet their initial burden, the McMahons must show the statements “‘fit[] one of the categories spelled out in section 425.16, subdivision (e).’” (Navellier, supra,29 Cal.4th at p. 88.) “The only way a defendant can make a sufficient threshold showing is to demonstrate that the conduct by which the plaintiff claims to have been injured falls within one of those four categories.” (Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1130 (Weinberg).)
The four categories of protected activity 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.” (§ 425.16, subd. (e).)
The McMahons contend the statements fall within the second category of protected activity because they mentioned Pratt’s conduct in prior litigation. Section 425.16, subdivision (e)(2), protects statements “made in connection with an issue under consideration or review by a . . . judicial body.” By its plain words, this subdivision sets forth “the necessity of a connection to an issue under review in a proceeding, and not merely to a proceeding.” (Paul v. Friedman (2002) 95 Cal.App.4th 853, 866.) There must be both a “pending proceeding” and a “connection to an issue before the tribunal.” (Id. at p. 867.) But the subdivision “does not accord anti-SLAPP protection to suits arising from any act having any connection, however remote, with an official proceeding.” (Id. at p. 866.) Thus, “it is insufficient to assert that the acts alleged were ‘in connection with’ an official proceeding. There must be a connection with an issue under review in that proceeding.” (Id. at p. 867, italics added.) While Pratt’s alleged conduct may have occurred before a judicial body, the McMahons fail to show his conduct was an “issue under consideration or review” in any “pending proceeding” when the article was posted. (§ 425.16, subd. (e); Paul v. Friedman, supra, 95 Cal.App.4th at p. 867.)
The McMahons further contend the statements fall within the third and fourth categories of protected activity because they concern issues of public interest. Section 425.16, subdivision (e)(3), protects statements “made in . . . a public forum in connection with an issue of public interest.” And section 425.16, subdivision (e)(4), protects statements made “in furtherance of . . . the constitutional right of . . . free speech in connection with a public issue or an issue of public interest.”
The common element of these protected speech categories is the requirement that the statements be made 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 [anti-SLAPP] statute.” (Weinberg, supra,110 Cal.App.4th at p. 1132.)
We assume without deciding the Web site on which the statements were posted is a “place open to the public or a public forum.” (§ 425.16, subd. (e)(3).)
While the anti-SLAPP statute protects statements concerning an issue of public interest, it “does not provide a definition for ‘an issue of public interest,’ and it is doubtful an all-encompassing definition could be provided.” (Weinberg, supra,110 Cal.App.4th at p. 1132.)
The McMahons note three examples courts have used to illustrate issues of public interest. “The court in Rivero [v. American Federation of State, County and Municipal Employees, AFL-CIO (2003)] 105 Cal.App.4th 913 [(Rivero)], described three situations in which statements may concern a public issue or a matter of public interest: (1) the subject of the statement or activity precipitating the claim was a person or entity in the public eye; (2) the statement or activity precipitating the claim involved conduct that could affect large numbers of people beyond the direct participants; or (3) the statement or activity precipitating the claim involved a topic of widespread public interest.” (Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 111 (Mann).)
The McMahons contend the statements match up to each of these examples. Their contentions are unsupported by citations to the record or persuasive case law.
First, the McMahons claim Pratt’s former law firm is “in the public eye.” (Mann, supra, 120 Cal.App.4th at p. 111.) They assert the law firm represents more than 500 homeowners associations with tens of thousands of members. They further assert its lawyers lobby for homeowners associations, serve on Department of Real Estate task forces, and appear on television. Even if true, a private law firm does not inject itself into the public eye merely by having many clients or making isolated media appearances. (See Rivero, supra, 105 Cal.App.4th at p. 924 [citing “public eye” cases involving a “‘nationally known figure,’” a nationally broadcast television show, and a large church subjected to “extensive ‘media coverage,’” italics added].)
Second, the McMahons claim the law firm’s conduct “affect[s] large numbers of people beyond the direct participants.” (Mann, supra, 120 Cal.App.4th at p. 111.) But the relevant focus here is on “the statement or activity precipitating the claim,” not the conduct precipitating the statement that precipitates the claim. (Ibid.) The question is whether the allegedly defamatory statements could affect large numbers of people. The McMahons fail to explain how the posted article could affect anyone other than Pratt and the law firm, except by appealing to the public’s general interest in attorneys and court proceedings. And this spills into the last of the three Mann examples.
Third and finally, the McMahons claim the statements “involved a topic of widespread public interest.” (Mann, supra, 120 Cal.App.4th at p. 111.) They fail to cite any evidence in the record showing Pratt’s conduct, as described in the statements, has generated any widespread interest beyond the McMahon’s own Web site. (Weinberg, supra,110 Cal.App.4th at p. 1133 [defendant cannot create public interest by publicizing private information]; Rivero, supra, 105 Cal.App.4th at p. 926 [same].)
The McMahons instead resort to broad principals and themes. They assert the public is generally interested in allegations of attorney misconduct, court proceedings, and homeowner associations. This general interest, if any, is insufficient.
To show an issue of public interest, “the assertion of a broad and amorphous public interest is not sufficient.” (Weinberg, supra,110 Cal.App.4th at p. 1132.) Despite the general interest in public safety, allegations of criminal conduct are not necessarily protected by the anti-SLAPP statute. (Id. at pp. 1134-1136.) Despite the general interest in public universities, allegations of employee wrongdoing at the University of California are also not protected. (Rivero, supra, 105 Cal.App.4th at pp. 924-925.) Despite the general interest in public health, statements by a medical corporation to a health maintenance organization are not protected (Kurwa v. Harrington, Foxx, Dubrow & Canter, LLP (2007) 146 Cal.App.4th 841, 848-849); neither are statements concerning the efficacy of a particular herbal supplement (Consumer Justice Center v. Trimedica International, Inc. (2003) 107 Cal.App.4th 595, 601).
The McMahons cite no evidence that the public has shown particular widespread interest in the specific activities mentioned in the statements. They have not shown Pratt’s alleged misconduct has generated public scrutiny. (See Weinberg, supra,110 Cal.App.4th at p. 1132 [unreported accusations of criminal conduct not protected].) They have not shown the underlying litigation in which Pratt represented the homeowners association has been subject to more attention than any other matter of public record. (See Rivero, supra, 105 Cal.App.4th at pp. 924-925 [specific illegal employment conduct at public university not an issue of public interest “even though it implicates a public policy”; rejecting claim that “every allegedly inappropriate use of public funds, no matter how minor, would constitute a matter of public interest”].)
The McMahons thus fail to show the statements in the article were made in connection with issues of public interest. Rather, they appear to be “matter[s] of concern to the speaker and a relatively small, specific audience” of other persons who feel wronged by Pratt or his former law firm or his former client. (Weinberg, supra, 110 Cal.App.4th at p. 1132.) For statements to merit protection by the anti-SLAPP statute, “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 . . . .’” (Id at pp. 1132-1133.) Statements made in “a private campaign of vilification” — such as this — do not interest the public and are not protected. (Id. at p. 1135.)
Because the McMahon’s fail to show the posted article is protected by the anti-SLAPP statute, we need not determine whether Pratt has shown a probability of prevailing on the merits.
DISPOSITION
The order denying the anti-SLAPP motion is affirmed. Pratt shall recover his costs on appeal.
WE CONCUR: SILLS, P. J., RYLAARSDAM, J.