Opinion
A149758
11-21-2017
ALAN BRENNER, Plaintiff and Appellant, v. ANNA BRENNAN HILL et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. HG16816259)
Professional models posted an online "blacklist" of photographers who allegedly engaged in sexually inappropriate behavior in professional settings with models. Alan Brenner, one of those on the list, sued the models for defamation and related torts. The models successfully moved to strike the complaint under the anti-SLAPP law (Code Civ. Proc., § 425.16). We affirm.
Undesignated statutory references are to the Code of Civil Procedure.
I. BACKGROUND
Anna Brennan Hill (also known as Anna Brennan) and Nicole Prescott (also known as Nicole Vaunt) are professional models who apparently work (at least in part) in a niche industry in which amateur and professional photographers pay to attend photography events where models pose for pictures. Brenner is a photographer who organizes such events. Models and photographers in this niche industry apparently network through a Web site, modelmayhem.com (Model Mayhem).
In about June 2015, Hill made a posting entitled "The Blacklist" on her "Pretty | Gritty" Tumblr account. "I finally have a second to breathe and post regarding my volatile decision to make my blacklist public, a decision in which I still stand behind. [¶] I took the blacklist down because I reblogged it from another model. I was the catalyst for the whole thing, so I feel the post should be in my words and mine only. I also feel I should be the one receiving the fallout for what I started. [¶] I am not actively adding to my blacklist. If you have had a negative experience with someone I encourage you to reach out to the authorities, Facebook admins, and Model Mayhem moderators (MM especially has specifically requested people come to them). [¶] I cannot thank those who have offered support and solidarity enough. I have been receiving hundreds of messages an hour since my initial posting so I am incredibly behind on messages right now, but I am slowly responding to every single one. [¶] I do not recommend the following photographers:
A March 24, 2016 printout of the blog post (http://pritty-gritty.tumblr.com/post/122617439177/the-blacklist) was attached to Brenner's complaint. "Tumblr is a microblogging and social networking website . . . . The service allows users to post multimedia and other content to a short-form blog. Users can follow other users' blogs." (Wikipedia, The Free Encyclopedia <https://en.wikipedia.org/wiki/ Tumblr> [as of Nov. 21, 2017]; Tumblr <https://www.tumblr.com/about> [as of Nov. 21, 2017].)
"[Name and studio omitted] Inappropriate (for brevity, groping, soliciting sex, sending dick pics, extreme limit pushing, and the like will fall under inappropriate).Thirty-nine additional listings followed with the labels: "Inappropriate," "Dangerous," "Extreme unprofessionalism," "Extremely Inappropriate," or "Inappropriate, possibly dangerous." One of the listings was: "GPS Studios | Allan Brenner. Inappropriate. CA." This Tumblr posting was liked (i.e., received positive reactions) and reblogged multiple times.
"[Name and studio omitted] Dangerous (assault, and anything physical). NH
"[Name and studio omitted] Dangerous (verbally abused and physically threatened me). OH."
"Reblogging . . . is the mechanism in blogging which allows users to repost the content of another user's post with an indication that the source of the post is another user." (Wikipedia, The Free Encyclopedia <https://en.wikipedia.org/wiki/Reblogging> [as of Nov. 21, 2017].)
In about September 2015, Prescott posted an annotated version of The Blacklist on her "There's No Place Like Your Mouth" Tumblr account: "List of Dangerous & Inappropriate Photographers, as compiled by [Hill] (an established, reputable freelance traveling model) // This is not my personal list; I've added my (Nicole Vaunt) personal comments in italics where it is someone I know. [¶] 'Dangerous' means that the photographer is allegedly responsible for 'assault, abuse or anything physically threatening.' " Ten "dangerous" listings followed. " 'Inappropriate' means that the photographer is allegedly responsible for one or all of the following: 'groping, soliciting sex, sending dick pics, repeatedly trying to push a model past her limits.' [¶] A NOTE ABOUT INAPPROPRIATE. Everyone has different limits, and the line between professionals bantering & friends flirting is very thin. SO STICK TO YOUR GUNS ABOUT HOW YOU FEEL, AND SPEAK UP IF YOU DON'T FEEL COMFORTABLE. And please please PLEASE do not bring alcohol into a photo shoot situation. I can't count the number of times I've heard a bad story about a photographer that starts with 'we started drinking . . . .' " Twenty-five "inappropriate" listings follow including "GPS Studios, Alan Brenner - CA." Prescott's blog was liked and reblogged multiple times.
On May 13, 2016, Brenner sued Hill and Prescott for defamation, conspiracy, intentional infliction of emotional distress and intentional interference with prospective economic advantage. Brenner alleged the "inappropriate" listing was not based on Hill's personal experiences with him, which involved only one appropriate contact in 2013 that generated no complaints, and Prescott had no personal knowledge of any inappropriate conduct by him. Hill had not attempted to verify with him any other allegations against him nor did she provide him a forum to respond to The Blacklist. Hill committed further acts of defamation. While working in Brenner's studio in February 2016, she told Steve Thurston, a friend and business associate of Brenner, that she had added Brenner to The Blacklist, and Brenner alleged on information and belief that Hill made false statements that Brenner used hidden cameras to stream video of people disrobing in his studio and that he required people to sleep with him as a condition of employment.
Brenner also sued two named defendants and Doe defendants. We do not discuss the allegations against these defendants because they are not relevant to the anti-SLAPP ruling under review.
Hill and Prescott moved to strike the complaint as an anti-SLAPP suit. In support of the motions, Hill averred that she identified Brenner as "inappropriate" on The Blacklist "based on my own personal observations of his behavior so that other models could make a more informed decision about who to work with in the modeling industry." Specifically, "[i]n the Spring of 2013, I was hired by [Brenner] to work at an event he organized. I directly observed his behavior to be inappropriate both socially and professionally, specifically that he tended to make overtly sexual references in his conversations, and I did not feel that he conducted himself in a way that was befitting of the modeling industry." She also acknowledged speaking about The Blacklist to many people, "including in February 2016 to Steve Thurston." However, she had "never written or spoken about [Brenner's] using hidden cameras in his studio to stream video to the Internet of people disrobing, or requiring people to sleep in his bed with him as a condition of employment." Prescott claimed that when she reposted The Blacklist on her Tumblr blog, she "did not modify any part of [Hill's] Original Post," which she identified as "GPS Studios | Alan Brenner, Inappropriate. CA." She maintained the "There's No Place Like Your Mouth" Tumblr blog to provide "resources for other freelance models to seek advice and warnings about potential hazards and abuses in the industry."
Hill further acknowledged discussing The Blacklist with administrators for Model Mayhem, where Brenner was a moderator. She wrote: "I didn't report my direct experience with [Brenner to Model Mayhem] for multiple reasons, primarily because he has been reported multiple times before, so I saw little point in it. Several models, including one of your mods, already reported him to Brandy. I'm always open to opining on my experience with him, though other models have had worse."
In opposition to the motions, Brenner averred that he had met Hill only once in 2013 when she "posed for a photography event." Neither she nor the person who brought her ever complained about Brenner's conduct at that event. "While I would like to be able to deny the allegations made against me by Anna Hill, she is so vague that I simply have no idea what she is talking about. I will however make it clear that what she has suggested in her declaration is not consistent with my own custom and habit and [I] am therefore certain it is untrue."
Brenner submitted evidence that Hill initially posted The Blacklist on a Facebook page that was accessible only to her Facebook friends, and after it was publicly published, The Blacklist had "gone viral" and was reblogged hundreds or thousands of times. Brenner specifically alleged The Blacklist had been reposted on another Tumblr account in July 2016, and that Prescott had continued to post about The Blacklist on her Tumblr account in July and August 2016.
Kurt Abraham, a professional photographer, averred that Hill first published The Blacklist on her Facebook timeline (under the name "Brennan Just Brennan"), which was available only to her friends. Hill initially accepted Abraham as a Facebook friend, but when he contacted her about The Blacklist she defriended him and he could no longer access her timeline.
Brenner reported that, since The Blacklist was published, he had been removed as a moderator for Model Mayhem and had trouble booking models for projects and events, including models who previously worked with him. Moreover, three days after Brenner served Hill with the complaint, his membership in Model Mayhem was cancelled "for 'the good of the site.' " Two other professional photographers who were listed as "inappropriate" or "dangerous" on The Blacklist averred they knew of no grounds for the labels and they had lost work due to the publications.
The trial court granted the anti-SLAPP motions. The court considered all evidence submitted on both motions when ruling on each motion. The court ruled the complaint arose from protected activity because it arose from a statement made in a public forum in connection with an issue of public interest, specifically The Blacklist postings on Tumblr accounts that were accessible to the general public. "Although [Brenner] contends that the 'Blacklist' was first published on Hill's Facebook page, Facebook postings are also considered statements made in a public forum. (See Trinidade v. Reach Media Grp. LLC (N.D.Cal. 2013) 2013 WL 3977034)." The postings concerned an issue of interest "to a substantial number of people who have an interest in not working with or patronizing photographers who allegedly behave in an abusive or inappropriate manner with models. . . . [A]lthough this is a somewhat close issue, [Hill and Prescott have] established that [their] statements concern a topic that impacts a broad enough segment of society in connection with an ongoing controversy or discussion so as to constitute an issue of public interest under § 425.16(e)(3). (See, e.g., Terry v. Davis Community Center (2015) 131 Cal.App.4th 1534, 1546-1547 and Ruiz v. Harbor View Community Assn. (2005) 134 Cal.App.4th 1456, 1468-1469.)"
The court also ruled that Brenner had not shown a probability of prevailing on his claims. The defamation claims failed because the statements that Brenner was "inappropriate" were nonactionable statements of opinion, not fact. Even taking into consideration the apparent definition of "inappropriate" as "groping, soliciting sex, [etc.]," the court ruled that Brenner had failed to produce evidence the "inappropriate" label was false. "[Brenner] has not submitted any evidence demonstrating that he did not engage in any of the conduct defined . . . as 'inappropriate.' His own declaration does not expressly deny that (or even address whether) he engaged in any such conduct with models . . . . [¶] At the hearing [on the] Motion[s], [Brenner] appeared to fundamentally misunderstand his burden of proof . . . . [He] repeatedly emphasized that Hill [and Prescott] had not proven that he had committed inappropriate conduct, because [Hill's] declaration . . . was too vague. However, in the context of an anti-SLAPP motion, it was not Hill's [or Prescott's] burden to prove that [Brenner] engaged in the inappropriate [conduct]. . . . Rather, once Hill [and Prescott] met [their] burden of demonstrating that the claims against [them] arose from protected activity, it was [Brenner's] burden to demonstrate, by admissible evidence, his probability of prevailing on his claims . . . . [Brenner] could have met that burden by affirmatively and unambiguously stating in his declaration that he never engaged in any of that conduct with models. But [he] did not do so . . . ."
The court further ruled that Brenner had not demonstrated a probability of prevailing on his other causes of action. In light of his failure to deny inappropriate conduct, Brenner had not produced evidence of extreme or outrageous conduct by Hill or Prescott necessary to prove intentional infliction of emotional distress. He had not shown that Hill or Prescott knew of and intended to disrupt a business relationship of Brenner's as necessary to prove intentional interference with prospective economic advantage. He also had not shown that Hill and Prescott conspired with others to commit any tort as necessary to establish conspiracy liability. Brenner appeals.
II. DISCUSSION
"Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. We have described this second step as a 'summary-judgment-like procedure.' [Citation.] The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff's evidence as true, and evaluates the defendant's showing only to determine if it defeats the plaintiff's claim as a matter of law. [Citation.] '[C]laims with the requisite minimal merit may proceed.' " (Baral v. Schnitt (2016) 1 Cal.5th 376, 384-385.) "On appeal, we review de novo the trial court's ruling on the motion to strike." (McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 109.) A. The Complaint Arises from Protected Activity
The trial court ruled that the complaint arose from a "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." (§ 425.16, subd. (e)(3).) Brenner argues the publications did not address an issue of public interest and as to two publications were not made in a place open to the public or a public forum (made in public). We agree with the trial court that the publications concerned matters of public interest. We need not decide whether they were made in public because even private statements about matters of public interest are protected under section 425.16, subdivision (e)(4). (Terry v. Davis Community Church, supra, 131 Cal.App.4th at p. 1546 (Terry).)
The number of identified likes and reblogs would, however, indicate "public" dissemination.
"[S]ection 425.16 '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. [Citation.] Third, there should be some degree of closeness between the challenged statements and the asserted public interest [citation]; 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.' " (Terry, supra, 131 Cal.App.4th at pp. 1546-1547.)
In Terry, the court held that a controversy within a church congregation about a pastor's alleged inappropriate sexual relationship with a minor church member was a matter of public interest. (Terry, supra, 131 Cal.App.4th at pp. 1539, 1545, 1547.) "The issue as to whether or not an adult who interacts with minors in a church youth program has engaged in an inappropriate relationship with any of the minors is clearly a matter of public interest." (Id. at p. 1547.) Similarly, in Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450, the court held that a controversy about a volunteer basketball coach's discipline of a fourth-grade player involved an issue of public interest. (Id. at p. 455.) "[L]ike the safety of children issue in Terry, the safety of children in sports is also an issue of public interest—which issue . . . was at the heart of the dispute with defendants." (Id. at p. 467.) An issue of public interest may also involve an ongoing controversy within a definable portion of the public such as a homeowner's association or union are protected activity. (See Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107, 119.)
We agree with the trial court that the challenged publications addressed a matter of public interest: sexual harassment in the workplace (broadly construed to include the workplaces of independent contractors as well as employees). Sexual harassment in the workplace has been a matter of public controversy for decades and the target of state and federal remedial legislation. (See Gov. Code, § 12940, subd. (j); 42 U.S.C. § 2000e-2(a)(1); Meritor Savings Bank v. Vinson (1986) 477 U.S. 57, 64-66; Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 277-278.) Hill and Prescott addressed this issue of public interest in the context of how it affected their particular industry and coworkers. The evidence in the record of voluminous responses to The Blacklist, which included corroborating comments by other models, and inquiries and follow-up by a central networking site, Model Mayhem, demonstrates that the issue was also an ongoing controversy within the segment of the modeling industry where Hill and Prescott worked.
Brenner challenges the relevance or admissibility of two news articles respondents submitted to demonstrate that sexual harassment in the modeling industry is a matter of public interest. We need not rely on these articles to identify sexual harassment in the workplace as a matter of public interest, and the respondents' own publications related to The Blacklist and the responses thereto demonstrate that the issue was a matter of public interest within the modeling industry where the parties work.
Although Hill's and Prescott's decisions to publish The Blacklist may have increased the public debate about the issue, Brenner has not shown that this was a case of someone " 'by their own conduct, . . . turn[ing] otherwise private information into a matter of public interest simply by communicating it to a large number of people.' " (Terry, supra, 131 Cal.App.4th at p. 1547.) They addressed their comments to an appropriate, interested audience by posting on Tumblr blogs dedicated to modeling issues (and apparently a Facebook account frequented by participants in the industry). Even if we look at the controversy within their modeling circles in isolation, the controversy easily satisfies the category of protected activity described in Du Charme v. International Brotherhood of Electrical Workers, supra, 110 Cal.App.4th 107, a matter of ongoing controversy among a sizeable, definable portion of the public. Brenner himself avers that he conducts hundreds of photography events a year, hiring multiple models at each; and The Blacklist identifies dozens of problem photographers, inferably a minority of a larger pool. Brenner argues that the publications regarding him are connected to a matter of public interest only if he in fact behaved inappropriately with models as alleged. He is incorrect. As the Terry court observed: "It need not be proved that a particular adult is in actuality a sexual predator in order for the [controversy about alleged sexual predation] to be a legitimate subject of discussion." (Id. at p. 1547.)
In sum, we conclude Brenner's claims against Hill and Prescott arose from protected activity, i.e., statements on matters of public interest, whether or not published in public fora. B. Probability of Prevailing
1. Defamation
Defamation is a "false and unprivileged publication" by writing or oral utterance that has a tendency to injure the plaintiff in his occupation or otherwise damage his reputation. (Civ. Code, §§ 44, 45, 46.) Ordinarily, falsity is presumed in a common law defamation action. When publications address matters of public interest, however, First Amendment principles require that the plaintiff prove the falsity of the statements in order to recover. (Nizam-Aldine v. City of Oakland (1996) 47 Cal.App.4th 364, 375; Smith v. Maldonado (1999) 72 Cal.App.4th 637, 646, fn. 5.)
Here, the publications implied that Brenner had committed the following acts against models in a professional setting: "groping, soliciting sex, sending dick pics, extreme limit pushing, and the like." To support her motion to strike, Hill averred she had observed Brenner make overtly sexual comments in a professional setting. Brenner responded by averring that, while it was difficult to respond to such vague allegations, they were inconsistent with his habit and custom of conduct. If Hill's averment were the alleged defamatory statement, Brenner's response might have been sufficient to show his action had the minimal merit necessary to survive an anti-SLAPP motion.
The publications at issue, however, expressly alleged that Brenner had engaged in "groping, soliciting sex, sending dick pics, extreme limit pushing, and the like." Regardless of whether the speakers had personal knowledge of Brenner's committing such acts, the publications were defamatory only if they were false. Thus, Brenner had the burden of producing evidence that he did not commit those acts. As the trial court observed, Brenner "could have met that burden by affirmatively and unambiguously stating in his declaration that he never engaged in any of that conduct with models. But [he] did not do so . . . ." The issue apparently discussed at the hearing on the motion because the trial court wrote, "At the hearing [on the] Motion[s], [Brenner] appeared to fundamentally misunderstand his burden of proof . . . ."
Because Brenner has not included a reporter's transcript of this hearing, we cannot review his exact colloquy with the court and we must assume that any such colloquy supported the court's ruling. (See Sanowicz v. Bacal (2015) 234 Cal.App.4th 1027, 1034, fn. 5.)
Brenner cites statements in his appellate briefing as unambiguous denials of the publications' truth, implying they can serve as substitutes for his failure to present such evidence in the trial court. He notes that our standard of review on anti-SLAPP motions is de novo and suggests we can therefore consider new evidence on appeal. He is doubly wrong. First, the statements in his briefs are not evidence (Cassidy v. California Bd. of Accountancy (2013) 220 Cal.App.4th 620, 628). Second, our de novo review applies to the legal questions of whether the action arises from protected activity and has a probability of success, but we rely on the evidence presented to the trial court to make those determinations. (See Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 468-469.)
In sum, we affirm the trial court's ruling that as a consequence of Brenner's failure to unambiguously deny the defamatory implications of the challenged publications, he failed to meet his burden of proof to show a probability of success on the merits of his defamation claims.
2. Other Causes of Action
Because of Brenner's failure to deny the defamatory implications of the publications, he also failed to show a probability of prevailing on his other causes of action. His claim for intentional infliction of emotional distress requires evidence of outrageous conduct by defendants. (So v. Shin (2013) 212 Cal.App.4th 652, 671.) While we agree that false allegations of sexually predatory conduct would be outrageous, as Brenner argues, Brenner has not shown the allegations were false or provided other evidence of outrageous conduct. Brenner's claim for intentional interference with prospective economic advantage requires a showing that the defendants' interference with a business relationship was independently unlawful. (Winchester Mystery House, LLC v. Global Asylum, Inc. (2012) 210 Cal.App.4th 579, 596.) Because Brenner's defamation and emotional distress claims fail for the reasons already stated, he has not shown that any interference with his business was independently unlawful. Finally, Brenner's conspiracy claim requires an underlying unlawful act. (Younan v. Equifax Inc. (1980) 111 Cal.App.3d 498, 508.) Again, Brenner has not produced evidence of unlawful conduct by the defendants.
III. DISPOSITION
The orders granting Hill's and Prescott's anti-SLAPP motions to strike are affirmed. Brenner shall bear the respondents' costs on appeal.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
SIMONS, J.