Opinion
D072372
09-28-2018
CATHERINE SACKS et al., Cross-complainants and Appellants, v. CHRISTINE HASLET et al., Cross-defendants and Appellants.
Law Office of Bryan W. Pease and Bryan W. Pease for Cross-complainants and Appellants. LIEB & LIEB, Jack R. Lieb and Richard L. Fahey for Cross-defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2016-00019244-CU-FR-CTL) APPEALS from an order of the Superior Court of San Diego County, Ronald L. Styn, Judge. Affirmed in part, and reversed in part with directions. Law Office of Bryan W. Pease and Bryan W. Pease for Cross-complainants and Appellants. LIEB & LIEB, Jack R. Lieb and Richard L. Fahey for Cross-defendants and Appellants.
Christine and Steven Haslet, and their business, Lucky Pup Dog Rescue (collectively the Haslets), sued Catherine Sacks and her business, Shelter Dogs to Dream Dogs (collectively Sacks). The Haslets alleged they delivered a dog ("Sandy") to Sacks for training and socialization, and about two weeks later, without the Haslets' knowledge or approval, Sacks took Sandy to a county animal shelter to be euthanized. The Haslets alleged tort, contract, and statutory causes of action.
Sacks cross-complained, asserting claims for defamation, negligent and intentional infliction of emotional distress, negligent and intentional interference with prospective economic advantage, violation of Business and Professions Code section 17200 (UCL), and promissory estoppel.
The Haslets moved to strike the cross-complaint under the anti-SLAPP statute. (Code Civ. Proc., § 425.16.) After briefing and argument, the court found the Haslets met their burden to show the claims arose from protected activity only on the promissory estoppel cause of action. On this cause of action, the court found Sacks did not meet her burden of showing a probability of prevailing on the merits, and struck the entire cause of action from the complaint. The court denied the Haslets' anti-SLAPP motion on the remaining six causes of action.
All unspecified statutory references are to the Code of Civil Procedure.
The parties filed cross-appeals challenging the court's anti-SLAPP rulings.
In their appeal, the Haslets contend the court erred in finding they did not meet their burden to show the first six causes of action in the cross-complaint arose from protected activities. We agree, and remand for the court to consider whether Sacks met her burden to show a probability of prevailing on these causes of action (defamation, intentional and negligent infliction of emotional distress, intentional and negligent interference with prospective economic advantage, and UCL violation).
In her appeal, Sacks contends the court erred in granting the anti-SLAPP motion on her promissory estoppel cause of action. This cause of action contains two discrete claims for purposes of the anti-SLAPP statute, and thus each claim must be analyzed separately. (Baral v. Schnitt (2016) 1 Cal.5th 376, 392-396 (Baral).) On the first claim, Sacks alleges the Haslets breached a promise that they were relinquishing ownership of Sandy to Sacks. We determine this claim did not arise from protected activity, and therefore the court erred in striking the claim from the cross-complaint. In the second claim, Sacks alleges the Haslets breached their promise to settle a prior small claims action by filing the current action. We determine the court properly concluded the Haslets met their burden to show this claim arose from protected litigation activities, and Sacks did not meet her burden to show a probability of prevailing. Thus, the court properly struck this claim (paragraphs 31 and 34 in the cross-complaint) from the promissory estoppel cause of action.
We thus affirm in part and reverse in part, and remand with specific directions set forth in the Disposition section.
FACTUAL AND PROCEDURAL SUMMARY
In this section we summarize the pleadings and evidence, and will discuss additional relevant facts when evaluating the parties' legal contentions. We describe the record in the light most favorable to Sacks, the party opposing the anti-SLAPP motion. (See Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3 (Soukup).)
Background
Lucky Pup Dog Rescue (Lucky Pup) is a nonprofit entity that rescues abandoned dogs from animal shelters to protect them from being euthanized or otherwise left without care. The Haslets are managing officers of Lucky Pup.
In May 2014, Lucky Pup obtained Sandy from an animal shelter, and delivered the dog to Sacks for "boot camp training." Sacks and her business provide rescue, training, and placement for dogs considered unadoptable because of aggression or other behavior problems. Sacks has successfully operated this business for more than 20 years, and has saved hundreds of dogs.
Lucky Pup paid $1,000 for the first week, and $800 for the second week. At about the same time, Sacks received a payment of $2,500. Mrs. Haslet told Sacks that this payment was made by a Lucky Pup donor for Sacks's "good work."
At the end of the two-week training, on about June 4, Sacks believed Sandy remained unadoptable because of his aggressive behavior and tendency to bite. On about June 6, Sacks, Mrs. Haslet and another woman, Denise Larkin (allegedly acting on behalf of Lucky Pup), had email conversations about Sandy's status and whether the Haslets and Lucky Pup were relinquishing ownership to Sacks, or whether they had effectuated a temporary transfer. Based on these conversations, Sacks believed Lucky Pup had relinquished ownership of Sandy to her. The Haslets, however, believed Lucky Pup continued to be Sandy's lawful owner.
The next day, on June 7, without the Haslets' knowledge, Sandy was euthanized in an animal shelter. According to Sacks, on that date Sandy had an accident "where he threw his body at the wall in a scared frenzy while snapping at everything around him, including the air, biting himself and pooping and peeing everywhere." Sacks said she "noticed Sandy would not put his leg down." She then "took Sandy to the Chula Vista Animal Shelter but they would not look at him because of his vicious aggression. Even if they could surgically fix his leg he would have bitten through the bandage and he never could heal." Sacks said: "The shelter recommended that Sandy be put down and I followed their advice. As the owner, I signed the relinquishment of Sandy."
Despite Sandy's death, during the next several weeks, Sacks sent two emails to Lucky Pup misrepresenting that she was continuing to train Sandy, and that Sandy was doing well. Two weeks after Sandy's death, Sacks finally told the Haslets about Sandy's death.
Several weeks later, in July 2014, the Haslets requested that San Diego County Animal Control conduct an investigation into Sandy's death. After the investigation, San Diego Animal Control concluded Sandy was " 'humanely euthanize[d]' " and declined to further investigate.
The next month, in August 2014, the Haslets brought a small claims action against Sacks concerning Sacks's alleged improper treatment of Sandy, and seeking repayment of the $4,300 paid to Sacks. In December 2014, several days before the small claims hearing, Sacks paid the entire $4,300 claim, plus filing and service costs. The Haslets filed a dismissal without prejudice.
At some unspecified time after Sandy's death, the Haslets created websites and social media sites for the purpose of discussing their version of the events surrounding Sandy's death (that the euthanasia was unjustified and unwarranted), and to claim Sacks is unqualified to care for or train animals and that Sacks's dog-training business is a "scam." These sites included a website called "shelterdogstodreamdosgssucks.com"; Lucky Pup's Facebook page, and a fundraising site labeled "gofundme.com/justiceforsandy." On the latter site, the Haslets sought to raise funds for litigation against Sacks.
The Haslets also complained in writing to numerous state and local governmental agencies about Sacks's actions that resulted in Sandy's death, and, more broadly, about Sacks's alleged substandard treatment of animals and the alleged conflicts of interest in various local agencies charged with regulating animal care.
Haslets' Superior Court Complaint
Two years after Sandy's death, on June 7, 2016, the Haslets filed their superior court complaint against Sacks and her business. In the amended complaint, the Haslets asserted causes of action for fraud, breach of contract, conversion, and unfair business practices, and sought compensatory and punitive damages. The Haslets alleged that before Sandy's death, Sacks reported on Sandy's favorable progress, and falsely stated she would "continue to work with Sandy indefinitely and 'put him on a path to find a home in the right way.' " They claimed they never agreed to relinquish ownership of Sandy, and the agreed plan was that Sacks would deliver Sandy back to them "for placement into a suitable foster and/or permanent home." They alleged Sacks falsely represented to the animal shelter that she had adopted Sandy, and that Sacks had Sandy put to death for no valid reason.
Sacks's Cross-complaint
Sacks filed a cross-complaint against the Haslets, asserting seven causes of action. The first six causes of action (defamation, intentional and negligent infliction of emotional distress, negligent and intentional interference with prospective economic advantage, and violation of the UCL statute) were based on a list of 39 "false and unprivileged oral and written statements" allegedly made by the Haslets. Sacks alleged the statements were contained on "[F]acebook, shelterdogstodreamdogssuck.com, Channel 10 and/or other news stations and other internet and news media." Sacks alleged the false statements caused her to "suffer[] injury to business and reputation[,] . . . embarrassment, humiliation, anguish, threats, and damages . . . ."
The cross-complaint identifies these statements as follows: "a. [Sacks] created paperwork to make it appear that [she] adopted Sandy; [¶] b. [Sacks and Shelter Animals] sent fake email reports for nearly two weeks, in order to convince our rescue to provide a rescue transfer to her; [¶] c. This is the third dog [Sacks has] done this to; [¶] d. The statute of limitations on the criminal portion of fraud and theft have passed because [Sacks] was able to hide what she did for so long; [¶] e. The cold heartless killing of our rescue dog Sandy; [¶] f. The trainer we hired and paid $4300; [¶] g. [Sacks] passed herself of[f] as a dog 'trainer'; [¶] h. Sandy is not the only dog that [Sacks] has taken to the shelter and killed; [¶] i. [Sacks's] cold and calculated killing of Sandy who belonged to our rescue; [¶] j. . . . Sacks does not understand that it was wrong to have another person's dog killed behind their back; [¶] k. Her 'Doggie Bootcamp' is a scam; [¶] l. Shelter Dogs to Dream Dogs masqueraded as being there for the dogs; [¶] m. . . . Sacks refuses to come clean with the whole story; [¶] n. Sandy was killed by a so-called trainer; [¶] o. . . . Sacks immediately intended to kill Sandy upon receipt of the transfer; [¶] p. [Sacks] didn't have time to call us and give us the option to take him back; [¶] q. She didn't whisper a word of her evil plan; [¶] r. We gave them $4300; [¶] s. We were struggling to find the truth and they continued the cover up; [¶] t. She received our $2500 payment; [¶] u. She pretended that she was going to help him; [¶] v. She scammed me into leaving my dog there for training and she killed him; [¶] w. This place is running a dog training scam; [¶] x. My dog Sandy was killed by his trainer; [¶] y. She pretended it was her dog and had him killed; [¶] z. Two other dogs were ordered euthanized by . . . Sacks; [¶] aa. Sacks told Animal Control that she trains one dog at a time; [¶] bb. 9 days later orders him killed; [¶] cc. Chula Vista Animal Shelter covered the story up; [¶] dd. This place is running a dog training scam; [¶] ee. Linda Septon creates documents that show Sandy (our dog) is adopted by . . . Sacks and then ordered killed; [¶] ff. [Sacks] bought their house and property with dog adoption money; [¶] gg. [Sacks] is stealing from her 501c3; [¶] hh. Animal Control protects [Sacks] because Dan Desousa's horses are kept [at her] house. [¶] ii. [Sacks's] daughter started Happy Cat Rescue to feed the cats to the coyotes. [¶] jj. [Sacks] buried dogs on their property; [¶] kk. [Sacks] buried more than 800 dogs on their property; [¶] ll. [Sacks] abuses and kills puppies; [¶] mm. [Sacks] owns a wolf[.]"
On the seventh (promissory estoppel) claim, Sacks alleged the Haslets breached two separate promises. First, Sacks alleged the Haslets "represented that they would no longer have any ownership or interest in Sandy," and alleged the Haslets breached this promise "by claiming an interest in Sandy, despite the unequivocal relinquishment and clear intent to have no further interest in Sandy." Second, Sacks alleged the Haslets "promised that in exchange for payment of $4,475 the entire matter and dispute was settled, including but not limited to the small claims action and all claims and causes of action between the parties," but that the Haslets "breached their representation by filing a new action despite the acceptance of the settlement and acceptance of the settlement funds." Sacks alleged she reasonably relied on these promises, and was damaged "in an amount subject to proof."
The Haslets' Anti-SLAPP Motion
The Haslets brought an anti-SLAPP motion seeking dismissal of each of the claims asserted against them in the cross-complaint. They supported their motion with Mrs. Haslet's declaration describing: (1) her version of the events leading to Sandy's death; (2) her claim that she never relinquished ownership of Sandy; (3) her numerous unsuccessful attempts to obtain regulatory or consumer oversight regarding the incident; and (4) assertions that Sacks was dishonest and unfit to care for animals. Because we do not reach the merits of these claims in this opinion, we do not detail these facts here. The Haslets also proffered supporting evidence and various letters they wrote to state and local agencies complaining about Sacks's activities and qualifications, and also submitted administrative reports received regarding the incident.
On the first six causes of action, the Haslets argued the anti-SLAPP statute applied because each of the alleged false statements upon which the claims were based was made in a public forum (social media sites) and concerned matters of public interest. On the public interest element, they directed the court to the portion of Mrs. Haslet's declaration stating that "Sandy's story has been covered in the news media, including Channel 10," and identified a local television news story titled "woman-suing-over-doggie-boot-camp-death." Mrs. Haslet also stated in her declaration that about six weeks after Sandy's death, "a local filmmaker created and published a 20 minute mini-documentary telling Sandy's story" and "[t]here were over 28,000 views of the original and updated version on YouTube." The Haslets also claimed that the alleged defamatory statements appear to have been made in connection with their "numerous complaints [to] various government agencies." On the merits of these first six causes of action, the Haslets argued Sacks could not prove her claims on various grounds, including that most of the alleged defamatory statements were true and/or the claims were time-barred.
On the promissory estoppel cause of action, the Haslets argued the anti-SLAPP statute applied to both alleged promises because they arose from the Haslets' litigation activities. They also argued Sacks would be unable to prevail on these claims. We discuss these arguments in more detail in part III of the Discussion.
Sacks's Opposition to Anti-SLAPP Motion
First Six Causes of Action
In opposing the anti-SLAPP motion, Sacks acknowledged her first six causes of action were based on the 39 alleged defamatory statements identified in her cross-complaint, and did not dispute the Haslets' contention that these statements were made in public forums. But Sacks strenuously argued the alleged defamatory statements were not a matter of public interest, asserting the dispute was solely "about the euthanasia of a [single] stray dog." She argued: " 'A person cannot turn otherwise private information into a matter of public interest simply by communicating it to a large number of people,' " and the Haslets "would like this to be about animal rights and a bigger cause that [Mrs. Haslet] blindly thinks she is spearheading, but there must be some degree of closeness between the challenged statements and the asserted public interest . . . ."
Sacks produced her supporting declaration and numerous documents. Of relevance here, these submissions included undated documents described by Sacks as Facebook postings and pages from the "Shelterdogstodreamdogssucks.com" website and the "gofundme" fundraising site. Sacks discussed many of the alleged defamatory statements set forth in her cross-complaint and identified the particular social media site on which each of these statements was contained. Sacks said the Haslets created these social media sites "all dedicated to disparaging me with false statements and admonishing any viewer that I am a dog killer and not to use my services. [¶] . . . Many people began threads and conversations as a result of [these] postings and social media. I became harassed, began to [receive] death threats, phone calls, negative reviews, hate mail and people outside my house threatening me and my family. My business has been significantly damaged by her false publications and statements. Many potential clients have informed me that they decided to go elsewhere based upon what was revealed by a Google search on my name or business name."
On the merits of the first six causes of action, Sacks argued "[t]he totality of the [alleged defamatory] statements, and all of the comments responding to the statements, when read together, make any reader believe [I am] a scam[,] a fraud[,] and a dog killer. None of the statements are true but [the Haslets'] goal of ruining [my] business was achieved." She argued and asserted in her declaration that all of the Haslets' alleged defamatory statements are false, claiming that she has a long and successful history of saving, training and placing " 'unadoptable' aggressive, difficult dogs," and that she has "had to euthanize only one dog, Sandy." She also detailed her communications with Mrs. Haslet and Larkin, and said that based on these conversations, she believed Lucky Pup had relinquished ownership of Sandy to her. She further described her version of the events leading to her decision to request that Sandy be euthanized; claimed that Mrs. Haslet has a "history of cyberbullying"; and asserted the Haslets' accusations about her ill-treatment of animals were false.
Promissory Estoppel Cause of Action
On the promissory estoppel cause of action, Sacks focused primarily on the probability-of-prevailing prong, and (as detailed below) presented the email correspondence between her attorney and Mrs. Haslet leading to her payment of the full amount sought in the Haslets' small claims action. Based on these communications and her full payment on the claim, Haslet argued that her promissory estoppel claim was viable because dogs "are deemed goods under the" Uniform Commercial Code and Mrs. Haslet's emails contained a clear confirmation that "the matter was completed and settled." She argued that "Haslet will be barred from claim splitting and the entire action is barred."
Court's Ruling
The court denied the anti-SLAPP motion on the first six causes of action. The court found the Haslets did not meet their burden to show these claims arose from protected activities. The court reasoned that the Haslets did not meet their threshold evidentiary burden to support their assertions that the alleged defamatory statements were made in public forums or in connection with an administrative investigation. The court thus did not reach the issues whether the alleged defamatory statements concerned a matter of public interest or whether Sacks met her burden to show a probability of prevailing on these causes of action.
On the promissory estoppel cause of action, the court found the Haslets met their burden to show both promises arose out of protected activities under section 425.16, subdivision (e)(2). The court then concluded Sacks did not meet her burden to show a probability of prevailing on either claim, stating that Sacks did not produce any evidence to support the claims.
In an ex parte motion, Sacks asked the court to reconsider its decision on the promissory estoppel claim, asserting that it appeared the court overlooked Sacks's evidence in support of the alleged promises. After reconsidering, the court adhered to its conclusion. The court acknowledged that Sacks had presented evidence relevant to her claim regarding the settlement, but found this evidence did not support a viable promissory estoppel cause of action.
DISCUSSION
I. Anti-SLAPP Law
California's anti-SLAPP statute states: "A cause of action against a person arising from any act of that person in furtherance of the person's [constitutional] right of petition or free speech . . . in connection with a public issue shall be subject to a special motion to strike, unless the court determines . . . there is a probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1).) This statute "provides a procedure for weeding out, at an early stage, meritless claims arising from [specified constitutionally] protected activity." (Baral, supra, 1 Cal.5th at p. 384, italics omitted.) The statute seeks " 'to encourage participation in matters of public significance and prevent meritless litigation designed to chill the exercise of First Amendment rights. [Citation.] The Legislature has declared that the statute must be "construed broadly" to that end.' " (Hawran v. Hixson (2012) 209 Cal.App.4th 256, 268.)
"Resolution of an anti-SLAPP motion involves two steps. First, the [moving party] must establish that the challenged claim arises from activity protected by section 425.16. . . . If the [moving party] makes the required showing, the burden shifts to the [opposing party] to demonstrate the merit of the claim by establishing a probability of success." (Baral, supra, 1 Cal.5th at p. 384, citation omitted.) We conduct a de novo review of a trial court's order denying an anti-SLAPP motion. (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067 (Park).) We therefore analyze the issues independent of the trial court's reasoning. (Ibid.) "If the trial court's decision is correct on any theory . . . , we affirm the order regardless of the correctness of the grounds on which the lower court reached its conclusion." (Robles v. Chalilpoyil (2010) 181 Cal.App.4th 566, 573.)
II. Haslets' Appeal: First Six Causes of Action
The Haslets contend the court erred in concluding they did not meet their burden to show Sacks's claims in the first six causes of action arose from their constitutionally protected activities.
A. Legal Principles Governing anti-SLAPP First Prong Analysis
Under the first step of the anti-SLAPP analysis, the moving party must show (1) the complaint alleges protected activity, and (2) the "relief is sought based on allegations arising from" the protected activity. (Baral, supra, 1 Cal.5th at p. 396, italics added; accord Park, supra, 2 Cal.5th at pp. 1061, 1062-1063.)
On the protected-activity requirement, the statute identifies four categories of actions that are " 'in furtherance of' " a defendant's free speech or petition rights: "(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, 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); see City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 422.)
B. First Prong Analysis of the Haslets' Motion
The Haslets relied on the second and third statutory categories to show the first six causes of action arose from protected activities. (§ 425.16, subds. (e)(2), (e)(3).) They argued the defamatory statements underlying each of these causes of action were made in public forums (e.g., websites and Facebook pages) and/or in complaints to administrative agencies regarding Sacks's conduct. The trial court concluded the Haslets did not meet their burden on this element because they did not affirmatively produce evidence establishing the time or place in which each of the alleged false statements were made, and thus did not show that these statements were made in public forums.
On appeal, the Haslets contend the court erred in failing to consider the declarations and other evidence submitted by Sacks in opposing the motion. We agree. A court is obligated to consider the entire anti-SLAPP record (pleadings and evidence submitted by both parties) to determine whether the moving party has met its burden on the first prong of the anti-SLAPP analysis, and not just the moving party's evidence. (See Navellier v. Sletten (2002) 29 Cal.4th 82, 89 (Navellier); Ben-Shahar v. Pickart (2014) 231 Cal.App.4th 1043, 1050; Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 186.)
On our independent review of the entire anti-SLAPP record, we conclude the Haslets met their burden to establish the first six causes of action arose from statements made in public forums.
It is undisputed that each of Sacks's first six causes of action is based on the alleged false statements identified in Sacks's cross-complaint. (See fn. 2, ante.) It is also undisputed that most of these statements were made on Internet sites directed at discussing Sacks's treatment of animals. Sacks attached to her declaration copies of pages from websites and Facebook postings, and asserted in her declaration that many (if not most) of the Haslets' defamatory statements were made in these electronic documents. Although Sacks did not discuss every single alleged false defamatory statement in her declaration, she did not dispute that these statements were also made on Internet websites and social networking sites fully accessible to the public and that these statements were widely viewed by numerous individuals, some of whom responded by posting public comments on the issues of Sacks's qualifications and trustworthiness. Likewise on appeal, Sacks makes no attempt to defend the court's conclusion that the statements were not made in a public forum, and instead admits that the Haslets made the alleged defamatory statements "through social media," including Facebook sites, Internet blogs, YouTube, and a gofundme site.
The courts have consistently recognized that websites accessible to the public qualify as public forums for purposes of the anti-SLAPP statute. (See Barrett v. Rosenthal (2006) 40 Cal.4th 33, 41, fn. 4; Cross v. Facebook, Inc. (2017) 14 Cal.App.5th 190, 197; Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1252; Grenier v. Taylor (2015) 234 Cal.App.4th 471, 481 (Grenier); Chaker v. Mateo (2012) 209 Cal.App.4th 1138, 1143-1144, 1146 (Chaker); ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1006; Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 895 (Wilbanks).) Under this settled law and on the record before us, we determine the Haslets met their burden to show the alleged defamatory statements were made in a public forum under section 425.16, subdivision (e)(3).
Based on this conclusion we do not reach the Haslets' alternate ground for satisfying their threshold anti-SLAPP burden, i.e., that certain of the alleged defamatory statements were apparently made in connection with administrative investigations.
But this conclusion does not mean the Haslets satisfied their burden on the first prong of the anti-SLAPP analysis. A statement made in a public forum qualifies as protected activity under section 425.16, subdivision (e)(3) only if the moving party establishes the statement was made "in connection with an issue of public interest." As she did below, Sacks contends the alleged defamatory statements concerned only a private dispute between the Haslets and herself about the care and ownership of a single dog, and thus is not a matter of public interest.
The anti-SLAPP statute does not define "an issue of public interest." (§ 425.16, subd. (e)(3).) This phrase is "inherently amorphous" and does not lend itself "to a precise, all-encompassing definition." (Cross v. Cooper (2011) 197 Cal.App.4th 357, 371.) But courts have recognized that " 'the question whether something is an issue of public interest must be " ' "construed broadly." ' " ' " (Chaker, supra, 209 Cal.App.4th 1145.) Thus, an issue of public interest may encompass activity solely between private people if the matter is something of concern to a substantial number of people; there is some degree of closeness between the challenged statements and the asserted public interest; and the focus of the speaker's conduct is on the public interest. (Ibid.; accord, Grenier, supra, 234 Cal.App.4th at pp. 481-482.)
Under these principles, the Courts of Appeal, including this court, have held that information in the " 'nature of consumer protection information,' " such as a "warning" not to use the opposing party's services, are matters of public interest. (Chaker, supra, 209 Cal.App.4th at p. 1146; accord Grenier, supra, 234 Cal.App.4th at p. 483; Piping Rock Partners, Inc. v. David Lerner Assocs. (N.D. Cal. 2013) 946 F.Supp.2d 957, 969 [statement concerned a matter of public interest because it was "a warning to consumers not to do business with plaintiffs because of their allegedly faulty business practices"]; Wong v. Jing (2010) 189 Cal.App.4th 1354, 1366-1367 [Yelp website post about individual's experience with dentist was issue of public interest]; Carver v. Bonds (2005) 135 Cal.App.4th 328, 343-344 [newspaper article critical of medical practitioner involved an issue of public interest because it contained consumer warning information]; Wilbanks, supra, 121 Cal.App.4th at pp. 899-900 [warning on website about business practices of viatical settlement broker was a protected anti-SLAPP activity as "consumer protection information" that could "aid consumers [in] choosing among brokers"]; see also Bently Reserve LP v. Papaliolios (2013) 218 Cal.App.4th 418, 425 [skipping over first step because " 'everyone agree[d]' " a negative Yelp website post about an apartment building manager was statutorily protected].)
In this case, Sacks's business consisted of caring for and training animals to serve as pets or companions for individuals and families. The alleged defamatory statements concerned Sacks's qualifications to perform these services, and assertions that she poses a substantial danger to animals in her care. As Sacks admits in her appellate brief, the Haslets made the challenged statements to "admonish viewer[s] that [Sacks] is a dog killer, to not . . . use her services and to 'put her out of business.' " The evidence shows these statements were contained on Internet sites that asserted Sacks's business is a "scam"; raised issues regarding the safety of "800+ [shelter] animals" that had been placed in Sacks's care; and warned "unsuspecting dog owners in the San Diego area" that Sacks has engaged in similar "reprehensible" actions in the past. The undisputed evidence showed numerous people read, viewed, and/or commented on the Haslets' information and warnings. Although the matter began with the Haslets' dissatisfaction with Sacks's treatment of Sandy, the alleged defamatory statements concerned a larger public issue of a dog trainer's trustworthiness and qualifications to safely train and care for animals.
Sacks contends that " '[a] person cannot turn otherwise private information into a matter of public interest simply by communicating it to a large number of people.' " We agree with this general principle. (See Bikkina v. Mahadevan (2015) 241 Cal.App.4th 70, 82 (Bikkina); Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1133.) But it is inapplicable here. Based on the evidence before us, the defamatory statements were not limited to the Haslets' concerns about Sacks's treatment of a single dog; instead they focused on the broader issue of Sacks's qualifications and ability to care for animals, an issue of significant concern to many people who had previously used Sacks's services and/or who were contemplating using her services. This conclusion does not mean that anti-SLAPP protection applies any time individuals have a dispute over a particular animal merely because the subject of animal welfare is important to many people. The public interest aspect of the anti-SLAPP statute applies only when the specific challenged speech is directed at the larger public issue. (Bikkina, supra, 241 Cal.App.4th at p. 84; Hailstone v. Martinez (2008) 169 Cal.App.4th 728, 736.)
In this case, the evidence produced by the parties supported that the Haslets' allegedly wrongful statements pertained not only to Sandy, but also the wider issue of whether Sacks—who advertised herself as a highly experienced and expert animal trainer and caregiver—was qualified to care for animals and whether she poses a danger to animals that have been or will be placed in her care. These statements were protected free speech under the anti-SLAPP statute because they were made in public forums in connection with an issue of public interest.
C. Second Prong Analysis of the Haslets' Motion
Because the court found the Haslets did not meet their burden to show Sacks's claims arose from protected activities, the court did not reach the issue whether Sacks met her burden to show a probability of prevailing on her first six causes of action. Sacks requests that we remand for the court to rule on this issue. We agree this is the appropriate procedure in this particular case. Even though a de novo review applies, parties are generally entitled to the benefit of the trial court's evaluation on second-prong issues before a reviewing court considers those issues as a matter of first impression. (See Collier v. Harris (2015) 240 Cal.App.4th 41, 58; Hunter v. CBS Broadcasting, Inc. (2013) 221 Cal.App.4th 1510, 1527-1528.) Although there are exceptions to this rule (see Collier, at p. 58), none applies under the circumstances here.
Accordingly, we reverse the order denying the anti-SLAPP motion on the first six causes of action, and remand for the court to evaluate the parties' pleadings, evidence, and arguments to determine whether Sacks met her burden to show a probability of prevailing on these claims.
III. Sacks's Appeal: Promissory Estoppel Cause of Action
In her appeal, Sacks contends the court erred in striking her promissory estoppel cause of action.
" ' "The elements of a promissory estoppel claim are '(1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) [the] reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.' " ' " (Aceves v. U.S. Bank N.A. (2011) 192 Cal.App.4th 218, 225.) " 'Promissory estoppel was developed to do rough justice when a party lacking contractual protection relied on another's promise to its detriment.' " (West Coast Air Conditioning Co. Inc. v. Department of Corrections & Rehabilitation (2018) 21 Cal.App.5th 453, 465.)
In her cross-complaint, Sacks sought relief under this cause of action based on two discrete alleged promises, and the Haslets moved to strike the entire cause of action. Thus, the Haslets had the initial burden to show each of these claims arose from constitutionally protected activities. (See Baral, supra, 1 Cal.5th at pp. 392-396.) If the Haslets met their burden on any one claim, the burden would then shift to Sacks to demonstrate a probability of prevailing on this challenged claim. (Id. at p. 396.) If the Haslets did not meet their burden to show one or both of those claims arose from protected activity, the burden never shifted on the claim and the court was required to deny the anti-SLAPP motion on that discrete claim. (Ibid.) We thus analyze the two claims separately.
A. Promise to Relinquish Ownership of Sandy
In her cross-complaint, Sacks alleged the Haslets "promised and represented that they relinquished any interest in Sandy. [They] alternatively represented they would do a rescue to rescue transfer. In either event, [the Haslets] represented that they would no longer have any ownership or interest in Sandy." Sacks alleges the Haslets "breached their representations and promises by claiming an interest in Sandy, despite the unequivocal relinquishment and clear intent to have no further interest in Sandy."
This allegation of wrongful conduct does not arise out of protected activity. It is an alleged promise made between private parties in private emails. The alleged wrongful conduct (claiming ownership of Sandy despite their alleged earlier promises to relinquish Sandy) does not concern a public issue or involve petitioning activities. Although some of the Haslets' conduct in claiming an interest in Sandy may have occurred in public forums or in litigation, these activities were evidence of the breach of their alleged promise and not the basis of the claim. Thus, they do not trigger anti-SLAPP protection. (See Park, supra, 2 Cal.5th at pp. 1060, 1064-1067.)
In their appellate briefs, the Haslets make no attempt to defend the court's conclusion that the relinquishment-of-ownership promise arose from protected activity within the meaning of the anti-SLAPP statute.
Because this discrete claim within the promissory estoppel cause of action does not arise from protected activities, the burden did not shift to Sacks to show a probability of prevailing on the claim. (See Baral, supra, 1 Cal.5th at p. 396.) Accordingly, we need not reach the issue, and reverse the portion of the court's order dismissing this claim.
B. Alleged Promise Not to Bring Additional Actions
1. Claim Arose From Protected Activities
In her cross-complaint, Sacks alleged the Haslets "represented and promised that in exchange for payment of $4,475 the entire matter and dispute was settled, including but not limited to the small claims action and all claims and causes of action between the parties." Sacks alleged the Haslets "breached [this] representation by filing a new action despite the acceptance of the settlement and acceptance of the settlement funds." (Italics added.)
These allegations arise from protected activities under section 425.16, subdivisions (e)(1) and (e)(2). Under the clear language of the pleadings and her declaration, Sacks is seeking to hold the Haslets liable for filing a lawsuit in contravention of their alleged promises to settle all of the parties' disputes by accepting the $4,475. The filing of a lawsuit is "indisputably . . . 'a statement or writing made before a . . . judicial proceeding' [citation]." (Navellier, supra, 29 Cal.4th at p. 90.)
Sacks argues that the "gravamen" of this claim arose "not because [the Haslets] filed a complaint," and instead it is the Haslets' "[s]ecret[] inten[t] to act contrary" to what they promised to do—settle all disputes pertaining to Sandy and thus refrain from filing any new actions. However, in determining the conduct that forms the basis for the liability and thus whether the claim arises from protected activity, the court must focus on the particular "elements of the challenged claim." (Park, supra, 2 Cal.5th at p. 1063.) Unlike a promissory fraud claim (which was not pled), a promissory estoppel claim does not require proof of the party's intent at the time of the promise, and instead it is grounded on the promisee's reasonable reliance on a representation and the promisor's later actions in failing to abide by the representation. (See Granadino v. Wells Fargo Bank, N.A. (2015) 236 Cal.App.4th 411, 416-418 (Granadino); Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)
But even assuming Sacks is correct that her promissory estoppel claim is based on the Haslets' alleged wrongful conduct in falsely representing that they intended to settle the entire "Sandy" matter when accepting the Haslets' payment for dismissing the small claims action, this claim would also arise from protected activity. The Haslets' alleged false promises that they were releasing Sacks from all future claims plainly constituted a statement or writing "made in connection with an issue under consideration or review by . . . a judicial body," i.e., the small claims court action. (§ 425.16, subd. (e)(2); see Navellier, supra, 29 Cal.4th at p. 90 [defendant's alleged negotiation, execution and repudiation of a release agreement pertaining to the settlement of a prior court claim "involved 'statement[s] or writing[s] made in connection with an issue under consideration or review by a . . . judicial body' "].) The small claims matter was pending in the court, and the Haslets allegedly engaged in wrongful conduct when they made false promises to settle that matter and all past and future disputes between the parties. By definition, these alleged false promises concerned matters under consideration by a judicial body, and thus constituted protected activity. (Navellier, at p. 90.)
The Haslets met their burden to show their promissory estoppel claim based on their alleged promise to settle and/or release Sacks from future claims arose from protected activity. Thus, the court properly found the burden shifted to Sacks to establish a probability of prevailing on this claim.
2. Sacks Did Not Meet Burden to Show Probability of Prevailing on Claim
Sacks contends the court erred in finding she did not meet her burden to show a probability of prevailing on this breach-of-settlement portion of her promissory estoppel cause of action.
a. Probability of Prevailing Standard
In determining whether the opposing party has demonstrated a probability of prevailing on the claim under the anti-SLAPP statute, "[t]he court ' " 'accept[s] as true the evidence favorable to [that party] . . . and evaluate[s] the [moving party's] evidence only to determine if it has defeated that submitted by the [opposing party] as a matter of law.' " ' " (Barry v. State Bar of California (2017) 2 Cal.5th 318, 321, citation omitted.) The opposing party is required to show " ' "there is admissible evidence that, if credited, would be sufficient to sustain a favorable judgment." . . . "The [party] may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence." ' " (Area 51 Productions, Inc. v. City of Alameda (2018) 20 Cal.App.5th 581, 593, citation omitted.)
The opposing party's claim need only have " 'minimal merit' " to satisfy this burden and survive an anti-SLAPP motion. (Soukup, supra, 39 Cal.4th at p. 291; Grewal v. Jammu (2011) 191 Cal.App.4th 977, 989.) "We do not weigh credibility, nor do we evaluate the weight of the evidence. Instead, we accept as true all evidence favorable to the plaintiff and assess the defendant's evidence only to determine if it defeats the plaintiff's submission as a matter of law." (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699-700; accord Ulkarim v. Westfield LLC (2014) 227 Cal.App.4th 1266, 1274-1275.)
b. Evidence on Merits of Promissory Estoppel Claim
To establish a probability of prevailing on her claim that the Haslets can be held liable under a promissory estoppel theory for breach of a promise to settle all disputes, Sacks relied on email correspondence between her attorney and Mrs. Haslet. This evidence was as follows:
On December 11, 2014, Sacks's attorney wrote to Mrs. Haslet: "Please accept this email as a confirmation of our conversation today wherein I informed you that Shelter Dogs to Dream Dogs is agreeing to pay the entire amount of your claim rather than appearing and defending the matter in Small Claims Court. My office will be sending a check today for $4,475 which includes your claim of $4,300 plus your [fees and costs]. [¶] Please confirm with me once you receive the check so we both are certain that the matter is completed and settled. . . ."
Several days later, on the morning of December 15, Mrs. Haslet emailed Sacks's attorney stating she had not received the check yet. She noted the December 17 small claims court date, and said "[w]e will plan to attend with our case if we don't receive the check."
Two hours later, Sacks's attorney emailed Mrs. Haslet, stating the check had been already sent by certified mail, but he would reissue the check if she had not received it. About 45 minutes later, Mrs. Haslet emailed Sacks's attorney stating the check had not been received, and that she could send someone to pick up the check that afternoon.
A few minutes later, Sacks's attorney responded: "Yes, please send someone over and I will stop payment of the previous one. I will have the check ready for pick up a[t] 2:30 at the front desk. Please let me know that you received it when the volunteer returns to you."
Later that day, Mrs. Haslet emailed Sacks's attorney, stating: "We received the check. I will notify our witnesses and small claims court in the morning that the defendant has made the payment in full. [¶] Thank you again for your help with this matter."
c. Evidence Did Not Establish Probability of Prevailing
This evidence falls short of showing there is merit to Sacks's promissory estoppel claim.
To establish a promissory estoppel claim, the plaintiff must plead and prove a promise that is " ' "clear and unambiguous in its terms." ' " (Granadino, supra, 236 Cal.App.4th at p. 417; accord, Lange v. TIG Ins. Co. (1998) 68 Cal.App.4th 1179, 1185.) " ' "[A] promise is an indispensable element of the doctrine of promissory estoppel. The cases are uniform in holding that this doctrine cannot be invoked and must be held inapplicable in the absence of a showing that a promise had been made upon which the complaining party relied to his prejudice . . . ." [Citation.] The promise must . . . be "clear and unambiguous in its terms." [Citation.] "Estoppel cannot be established from . . . preliminary discussions and negotiations." ' " (Granadino, at p. 417.)
Sacks did not present any evidence that the Haslets made a promise that their acceptance of the $4,475 to settle the small claims case meant they would not bring any additional court or administrative actions for additional or different damages on the same or different theories. At most, in their email correspondence, the Haslets agreed that in exchange for the payment, they would dismiss their small claims case. The undisputed evidence established they did so. The Haslets filed a dismissal without prejudice, but there was no mention in the parties' email discussions that Sacks had conditioned the payment on the Haslets' agreeing to a dismissal with prejudice or that the agreement to dismiss meant that no further actions could be brought pertaining to the Sandy incident.
In attempting to establish her promissory estoppel claim, Sacks contends that paying the Haslets' demand in full in the small claims matter constituted an accord and satisfaction under the Uniform Commercial Code. (See U. Com. Code, § 3-311.) However, even assuming this code section applies to bar any additional claim on the matters asserted in the small claims action (e.g. the request for funds paid for Sandy's care), this accord-and-satisfaction theory does not serve as a viable basis for a promissory estoppel cause of action. To recover on this claim, the plaintiff must establish the defendant made an unequivocal promise upon which the plaintiff reasonably relied. (Granadino, supra, 236 Cal.App.4th at p. 417.) The record is devoid of any such promise. The fact that Sacks may have a defense that she already fully compensated the Haslets for their losses does not substitute for the unequivocal-promise requirement of an affirmative quasi-contract claim.
We deny Sacks's request that we take judicial notice of the document containing the Haslets' factual allegations asserted in their small claims action. Because this document was not submitted in the anti-SLAPP proceedings, it is not properly before this court. (In re Zeth S. (2003) 31 Cal.4th 396, 405; Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.) In any event, there is nothing in this document that would alter our conclusion. The critical point is that Sacks has not presented evidence that the Haslets made an unequivocal promise not to file further actions against her.
Sacks did not meet her burden to establish a probability of prevailing on the promissory estoppel claim pertaining to the small claims settlement. This conclusion does not mean Sacks is prohibited from raising the small claims disposition as a defense to any of the Haslets' affirmative claims.
DISPOSITION
The court is directed to vacate its June 5, 2017 order on the Haslets' anti-SLAPP motion. On the promissory estoppel cause of action, the court shall file a new order: (1) denying the anti-SLAPP motion based on the Haslets' alleged promise to relinquish ownership of Sandy to Sacks; (2) granting the anti-SLAPP motion based on the Haslets' alleged promise that the "entire matter and dispute was settled" after the dismissal of the small claims action; and (3) striking paragraphs 31 and 33 from the cross-complaint. On the remaining causes of action (defamation, negligent and intentional infliction of emotional distress, negligent and intentional interference with prospective economic relations, and violation of the UCL), the court shall rule on the issue whether the cross-complainants met their burden to establish a probability of prevailing on the merits.
The parties shall bear their own costs on appeal.
HALLER, J. WE CONCUR: NARES, Acting P. J. O'ROURKE, J.