Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, Ct. No. 30-2009-00305180, James Di Cesare, Judge.
Law Offices of George S. Burns, George S. Burns and John C. Ashby, for Plaintiff and Appellant.
Wildish & Nialis, Daniel R. Wildish and N. Ramsey Barcik, for Defendants and Respondents.
OPINION
BEDSWORTH, ACTING P. J.
Westminster Asset, LLC, an entity which operates a residential facility for seniors, appeals from an order dismissing its complaint against B & S Painting, Inc., and Young Woo Yi (collectively Yi), on the ground it constituted a “strategic lawsuit against public participation” or “SLAPP” action. Among other things, Westminster contends the court erred in determining Yi’s alleged statements about it were made in connection with matters of public interest, and thus they fell within the purview of Code of Civil Procedure section 425.16 (section 425.16), generally referred to as the anti-SLAPP law. We agree.
Section 425.16 provides an efficient mechanism for testing the validity of certain lawsuits – those which arise out of specified categories of speech or petitioning activity. In order to fall within the statute’s protections, the speech or petitioning activity implicated in the lawsuit must either be made to a court or public body; be made in connection with a matter under consideration by such a court or public body; be made in a public place or forum and concern matters of public interest; or otherwise be in furtherance of the exercise of the constitutional right of petition or free speech in connection with a public issue or an issue of public interest. Yi’s alleged conduct in this case falls into none of those categories.
Although Yi asserts that his alleged accusations against Westminster – that it unjustifiably refused to pay him for services rendered, and acted in a racially motivated fashion – were legitimate matters of public interest, we disagree. Westminster is a private entity, and its alleged sharp business practices and race-based conduct are of interest only to those who come into contact with it. There is no widespread public interest in what Westminster does, or doesn’t do. The mere fact Yi accused Westminster of bad acts in a very public way, does not transform their private dispute into a matter of public interest.
Because we conclude the anti-SLAPP law did not apply to Yi’s public accusations of misconduct against Westminster, we also conclude the trial court erred in relying upon the law as a basis for ordering Westminster’s lawsuit stricken. The order is consequently reversed.
FACTS
This case arose out of a business dispute. Yi, who had performed some painting services for Westminster, and had unsuccessfully bid to perform more, presented Westminster with additional invoices arising from his earlier work – none of which Westminster agreed it owed. When Westminster refused to pay, Yi began a campaign of picketing and demonstrating on or about Westminster’s premises, including during a senior health fair, which had been organized by Westminster in a bid to draw people to its newly upgraded facility. Westminster estimated that 20 vendors were on site for the health fair, and approximately 100 people were in attendance throughout the day.
Yi acknowledged picketing Westminster during the period of September 1 – 19, 2009, including during the health fair. His picket signs stated “Where is $7960, ” “Please pay Labor, ” and “Where is my Labor.” He stated the signs were “meant to inform those attending the expo and the general public, who may entrust their elderly family members to [Westminster’s] services, about [Westminster’s] business dealings.” As Yi explained “[I]f [Westminster] was unwilling to pay these small invoices, what other services would [Westminster] potentially fail to perform for its elderly residents and other small business vendors who do business with [it]?”
According to Westminster, Yi became disruptive during its health fair, entering into the heart of the premises, waving his signs around and making demands. When he refused to leave, Westminster personnel called the police. After the police arrived, Yi complained that he had not been paid by Westminster because he was Asian.
Westminster sued Yi, alleging causes of action for defamation and trespass. Specifically, Westminster alleged that Yi had defamed it by publicly claiming it did not pay for labor provided to it, did not pay its debts, and had discriminated against him because he is Asian; none of which assertions were true. Westminster also claimed Yi trespassed on its property and refused to leave when asked. Westminster asked for damages for the defamation, and for an injunction to prohibit Yi from: (1) further unlawful picketing; (2) further distribution of false information about it; (3) further harassment of Westminster and its vendors, associates, customers and potential customers, and (4) further trespass on Westminster’s property.
Westminster styled its causes of action as “Damages (Libel and Slander)” and “Injunction (Libel, Slander and Unlawful Picketing.)” However, “damages” and “injunction” are both remedies, not causes of action. What Westminster was actually complaining about were invasions of its interest in its reputation – i.e., defamation (Gilbert v. Sykes (2007) 147 Cal.App.4th 13) – and in its property – i.e., trespass. (Kapner v. Meadowlark Ranch Assn. (2004)116 Cal.App.4th 1182.) Those were the causes of action stated. “[T]he invasion of one primary right gives rise to but a single cause of action.” (Coachella Valley Unified School Dist. v. State of California (2009) 176 Cal.App.4th 93, 126.)
Yi moved to strike the lawsuit under section 425.16, arguing in his motion that “[his] picketing is protected speech because it was made in a public forum in connection with an issue of public interest; namely informing the public consumer and other small business vendors, about [Westminster’s] business practices.”
Westminster opposed the motion, arguing both that the anti-SLAPP law did not apply because Yi’s alleged statements did not involve a matter of public interest, and that the motion should be denied in any event, as Westminster had demonstrated a probability of prevailing on the merits of its claims.
After considering the arguments of both sides, the court granted the motion, reasoning that “picketing in regard to business practices falls within” the protections of section 425.16, and Westminster did not show a probability of success on the merits of its claims. The court subsequently awarded Yi attorney fees of $6,060, and costs of $790, in connection with the successful motion to strike.
I
The anti-SLAPP law provides a summary mechanism to test the merits of any claim which arises out of the defendants’ protected communicative activities, allowing the court to strike any cause of action which falls within the statute’s purview and on which the plaintiff can show no probability of succeeding. Section 425.16, subdivision (b)(1), requires a two-step process for determining whether a defendant’s motion to strike should be granted. “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 defendant’s 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.” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)
Then, only if the court finds that such a showing has been made, the burden shifts to plaintiff to demonstrate “there is a probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1); DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 567-568.)
Our review of an order denying a motion to strike a complaint as a SLAPP suit is de novo. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999, [“Whether section 425.16 applies and whether the plaintiff has shown a probability of prevailing are both reviewed independently on appeal.”]; Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, 629.)
II
A motion to strike under the anti-SLAPP law can be brought in response to any “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 Constitution or the California Constitution in connection with a public issue....” (§ 425.16, subd. (b)(1).) Such acts are specifically defined as falling into four categories: “(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) 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.” (Id., subd. (e).)
In this case, Yi’s alleged conduct qualifies for protection, if at all, under the third category of protected acts, i.e.: “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.” The question, then, is whether Yi’s alleged statements about Westminster, which were indisputably made in a public place, were made “in connection with an issue of public interest.” Yi claims they were, characterizing the “issue” as “the unsavory business practices of [Westminster], ” which he asserts is of public significance “given the fact that [Westminster’s] clientele may be particularly vulnerable to such business practices.”
As Yi further explains, Westminster’s clientele, comprised of those senior citizens who reside in it residence, are particularly vulnerable because “persons who reside at retirement facilities need assistance caring for themselves, [and] they may more easily fall prey to sharp business practices.”
Unfortunately, section 425.16 itself “does not provide a definition for ‘an issue of public interest, ’ and it is doubtful an all-encompassing definition could be provided. However, the statute requires that there be some attributes of the issue which make it one of public, rather than merely private, interest. A few guiding principles may be derived from decisional authorities. First, ‘public interest’ does not equate with mere curiosity. [Citations.] Second, a matter of public interest should be something of concern to a substantial number of people. [Citation.] Thus, a matter of concern to the speaker and a relatively small, specific audience is not a matter of public interest. [Citations.] Third, there should be some degree of closeness between the challenged statements and the asserted public interest [citations.]; the assertion of a broad and amorphous public interest is not sufficient [citation]. Fourth, the focus of the speaker’s conduct should be the public interest rather than a mere effort ‘to gather ammunition for another round of [private] controversy....’ [Citation.] Finally, ‘those charged with defamation cannot, by their own conduct, create their own defense by making the claimant a public figure.’ [Citation.] A person cannot turn otherwise private information into a matter of public interest simply by communicating it to a large number of people. [Citations.]” (Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1132-1133.)
Applying those principals to this case makes it apparent that Yi’s alleged statements do not actually pertain to an issue of public interest. What Yi is alleged to have done in this case is make a very public proclamation that Westminster failed to pay him for painting services rendered and assert that Westminster’s conduct was motivated by racism. In doing so, Yi appears to be focusing specifically on his private grievance, and taking the matter public simply as a means of putting pressure on Westminster.
And while the alleged impropriety of Westminster’s business dealings might be of some significant interest to those who deal directly with Westminster – and especially any minority contractors who might be contemplating providing services to it – there is no indication it would be a matter of general public interest. Only if we can say that all allegations of bad acts, or even of racism, committed by anyone, would be a matter of public interest – because all members of the public have an inherent interest in identifying the bad guys we may come into contact with – can we conclude that the conduct alleged against Westminster by Yi in this case rose to that level. We cannot. Your dispute with your painting contractor is not a matter of general public interest within the contemplation of section 425.16.
Granted, we all have an interest in identifying the “bad guys.” We all would be safer and happier if we could identify the dangerous criminals, the racists, the people who have no respect for the law, who violate contractual obligations, who drive unsafely, who smoke in restaurants, who drive while texting, et cetera usque ad nauseam. But that does not make our personal conclusion that someone falls into one of those categories a matter of public interest.
At most, such claims are of interest only to the small percentage of the public which deals, or is likely to deal, directly with the alleged wrongdoer. And while the existence of racism in our society in general is a matter of public interest, the specific racist conduct of an individual who is not a public figure, viewed in isolation, would not be. Similarly, while the alleged commercial chicanery of a public utility, or of a large public corporation, affecting huge swaths of the citizenry as a whole, may be a matter of public interest, the business dealings of a small corporation, which affects relatively few people, is not.
Were the rule otherwise, it would mean that essentially every claim of defamation, based upon a statement made in a public place, would be subject to the anti-SLAPP law: “Edgar lied to me”; “Loretta cheats on her taxes”; “Alfred beats his dog.” That is not the law. As explained in Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 111, there are “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.” (Italics added.)
In Mann, the court concluded that even the defendants’ allegation plaintiff was dumping toxic chemicals into the water supply would not meet that high public interest standard. “Defendants argue that their statements to governmental agencies concerning [plaintiffs’] unlawful dumping of toxic chemicals and their subsequent alleged statements to plaintiffs’ customers about this activity were matters of ‘public interest’ within the meaning of section 425.16, subdivision (e)(4). However, they presented no argument or evidence that [plaintiff] is an entity in the public eye. Although pollution can affect large numbers of people and is a matter of general public interest, the focus of the anti-SLAPP statute must be on the specific nature of the speech rather than on generalities that might be abstracted from it. (Consumer Justice Center v. Trimedica International, Inc. (2003) 107 Cal.App.4th 595, 601 (Consumer Justice).) In Consumer Justice, the court held that advertising claims made on behalf of an herbal supplement promising breast enlargement did not involve a public issue or an issue of public interest because the speech was not about ‘herbal supplements in general, ’ but about ‘the specific properties and efficacy of a particular product.’ (Id. at pp. 600-603.) [¶] Similarly here, defendants’ alleged statements were not about pollution or potential public health and safety issues in general, but about [plaintiff’s] specific business practices. ‘If we were to accept [defendants’] argument that we should examine the nature of the speech in terms of generalities instead of specifics, then nearly any claim could be sufficiently abstracted to fall within the anti-SLAPP statute.’ (Consumer Justice, supra, 107 Cal.App.4th p. 601.)” (Mann v. Quality Old Time Service, Inc., supra, 120 Cal.App.4th at p. 111.)
Wong v. Jing (2010) 189 Cal.App.4th 1354, illustrates the distinction between a communication which merely accuses a private individual of misconduct, and one which does so “in connection with an issue of public interest.” In Wong, the court concluded that potentially libelous statements published on a consumer website, about a dentist allegedly using amalgam fillings on her minor patients without offering any warning about mercury, was protected under the anti-SLAPP law. In doing so, the court specifically relied upon the fact that “the posting went beyond parochial issues concerning a private dispute about particular dental appointments. It implicitly dealt with the more general issues of the use of nitrous oxide and silver amalgam, implied that those substances should not be used in treating children, and informed readers that other dentists do not use them. Thus, the review was not just a highly critical opinion of Wong’s performance on particular occasions; it was also part of a public discussion and dissemination of information on issues of public interest.” (Id. at p. 1367, italics added, fn. omitted.)
In this case, by contrast, Yi’s comments cannot be construed as implicitly dealing with any broader public discussion about sharp business practices in the senior care industry, nor about how racism impacts contractors in the building maintenance industry – indeed there is no evidence that any such public discussion was going on. Instead, the entire content of Yi’s communication was an accusation of an instance of private misconduct by Westminster. Yi was simply accusing Westminster of breaching a contract with him, and perhaps doing so for a racially motivated reason. Whether true or false, that communication reflected the content of a private dispute, not a matter of broad public interest.
In support of his claim the communications at issue here related to matters of public interest, Yi attempts to analogize this case to Wilbanks v. Wolk (2004) 121 Cal.App.4th 883. The comparison is not persuasive. In Wilbanks, defendant Wolk, a self-styled “consumer watchdog” in the viatical insurance industry, maintained a website which provided “information about those who broker life insurance policies, including information about licenses, suits brought by clients against brokers and investigations of brokers by governmental agencies.” (Id. at p. 889.) In connection with that purpose, she published allegedly defamatory statements suggesting that plaintiffs, a broker of viatical settlements and its principal, had engaged in wrongful conduct against their customers and were under state investigation. In concluding that the posting involved matters of public interest, the Wilbanks court first made clear that the issue of plaintiffs’ business practices, in and of itself, did not meet the normal criteria for matters of public interest, since “plaintiffs are not in the public eye, their business practices do not affect a large number of people and their business practices are not, in and of themselves, a topic of widespread public interest.” (Id. at p. 898.) However, the court nonetheless concluded that the posting was protected, because it was “in the nature of consumer protection information....” (Id. at p. 900.)
As the Wilbanks court explained, “It is undisputed that Wolk has studied the industry, has written books on it, and that her Web site provides consumer information about it, including educating consumers about the potential for fraud. As relevant here, Wolk identifies the brokers she believes have engaged in unethical or questionable practices, and provides information for the purpose of aiding viators and investors to choose between brokers. The information provided by Wolk on this topic, including the statements at issue here, was more than a report of some earlier conduct or proceeding; it was consumer protection information.” (Wilbanks v. Wolk, supra, 121 Cal.App.4th at p. 899.) In other words, Wolk’s statements about plaintiffs were made in connection with her overarching goal of providing consumer protection information to those interested in the viatical industry, and “[i]n the context of information ostensibly provided to aid consumers choosing among brokers....” (Id. at p. 900.)
The same cannot be said of Yi’s statements. Yi was not publishing information about Westminster as part of a preexisting campaign to assist vulnerable senior citizens – the consumers of Westminster’s product – nor was the information Yi provided even related to any alleged mistreatment of other such consumers. Instead, Yi was simply publicizing his own business dispute with Westminster. As such, Yi’s complaint was not “consumer protection information.” It conveyed nothing more than information about Westminster’s business practices, a subject that the Wilbanks court itself made clear would not meet the definition of a “public issue, ” as “[Westminster is] not in the public eye, [its] business practices do not affect a large number of people and [its] business practices are not, in and of themselves, a topic of widespread public interest.” (Wilbanks v. Wolk, supra, 121 Cal.App.4th at p. 898.)
Yi also relies upon Troy Group, Inc. v. Tilson (2005) 364 F.Supp.2d 1149, in which the federal district court concluded the efforts of a publicly traded corporation – with 12 million to 24 million outstanding shares – to go private was a matter of public interest. But the case hurts him far more than it helps.
In reaching its conclusion, the Troy Group court first noted that “‘it is now well settled that to constitute a public issue, this type of conduct must either impact[] a broad segment of society or affect[] a community in a manner similar to that of a governmental entity.’ [Citation.]” (Troy Group, Inc. v. Tilson, supra, 364 F.Supp.2d at p. 1153, italics added.) Neither, of course, could be said of the business practices of Westminster, which, even if nefarious, affect only the relatively small number of persons who do business with it.
The Troy Group court then explained that the public nature of the corporation’s business in that case was reinforced by the facts that the corporation had “repeatedly used press releases in its efforts to promote the company, the stock and, most importantly, the company’s contemplated going-private transaction, [and] The Wall Street Journal ran a detailed story about the Dirk family’s efforts to take the company private and the objections (and lawsuits) of certain investors, including Tilson and Osmium Partners.” (Troy Group, Inc. v. Tilson, supra, 364 F.Supp.2d at p. 1154.) Yi seems to believe that Westminster’s health fair – also an attempt to promote its business – would place it in the same public category as the corporation in Troy Group. However, that such a large, publicly traded and well publicized company would be characterized as an “entity in the public eye” (Mann v. Quality Old Time Service, Inc., supra, 120 Cal.App.4th at p. 111), by no means suggests that Westminster would also qualify as such, simply because it held what amounts to an “open house” event that attracted perhaps a hundred citizens to view its facility. Westminster’s local effort to attract new residents is hardly a bid for the sort of widespread public attention found in Troy Group.
Because the anti-SLAPP law does not protect all publicly declared communications, it would apply here only if Yi’s allegations against Westminster pertained to public issues, or matters of public interest. But they did not. Westminster and its alleged business practices simply do not command the widespread public interest that Yi would have us believe. We conclude, therefore, that Yi’s alleged statements about Westminster, although made in a public forum, were not made “in connection with an issue of public interest, ” and thus the statements were not the proper subject of a motion to strike under section 425.16. We consequently reverse the order striking the complaint, without reaching the issue of whether Westminster demonstrated a probability of prevailing on the merits of its claims.
DISPOSITION
The order striking Westminster’s complaint is reversed, and the matter is remanded to the trial court for further proceedings. The court’s related order, awarding attorney fees and costs to Yi in connection with the successful motion to strike, is also reversed. Westminster is to recover its costs on appeal.
WE CONCUR: ARONSON, J., IKOLA, J.