Opinion
G054317 G054406
12-14-2017
TODD MUELLER et al., Plaintiffs and Respondents, v. COLLECTORS UNIVERSE, INC., et al., Defendants and Appellants.
Attlesey | Storm, Keith A. Attlesey and John P. Ward for Defendant and Appellant Collector's Universe, Inc. Meylan Davitt Jain Arevian & Kim and Anita Jain for Defendant and Appellant R&R Auction Company, LLC. Christman, Kelley & Clarke and Matthew M. Clarke for Plaintiffs 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2016-00848849) OPINION Appeal from an order of the Superior Court of Orange County, Nathan R. Scott, Judge. Affirmed. Attlesey | Storm, Keith A. Attlesey and John P. Ward for Defendant and Appellant Collector's Universe, Inc. Meylan Davitt Jain Arevian & Kim and Anita Jain for Defendant and Appellant R&R Auction Company, LLC. Christman, Kelley & Clarke and Matthew M. Clarke for Plaintiffs and Respondents.
This appeal arises from the denial of an anti-SLAPP motion. (Code Civ. Proc., § 425.16; the anti-SLAPP statute.) Plaintiffs Todd Mueller and his company, Todd Mueller Autographs, LLC (collectively, Mueller), allege in their complaint that defendants have conspired to push Mueller out of the autographed memorabilia market by issuing fraudulent opinions regarding the authenticity of autographs on the products sold by Mueller. Collectors Universe, Inc. (Collectors), one of five defendants, filed an anti-SLAPP motion. Another defendant, R&R Auction Company, LLC (R&R), joined in the motion and we have consolidated the two appeals arising from the denial of the motion.
The issue boils down to this: Do opinions about the authenticity of celebrity autographs concern a public issue? We conclude they do not, and thus affirm the order.
FACTS
According to the complaint, Mueller is in the business of buying and selling collectible memorabilia, primarily autographed images of celebrities. When dealers sell autographed memorabilia, they issue a certificate of authenticity. Customers, however, understandably often seek a third-party authenticator. Two firms dominate the third-party authentication market: PSA/DNA (a dba of defendant Collectors), and James Spence Authentication LLC (JSA; another defendant in the case, but not a party to this appeal). Illustrative of their market control, they are two of only three firms approved as third-party authenticators for use with eBay transactions. They also largely share the same staff to perform the actual analyses.
R&R is an online autograph auction company that sells and authenticates autographed memorabilia to the public. The owner and founder of R&R, Bob Eaton, is a listed expert for both Collectors and JSA.
Plaintiffs allege defendants have conspired to remove Mueller from the market by refusing to authenticate items sold by Mueller, not based on the actual genuineness of the items, but on the sole fact that they are sold by Mueller. This is for the alleged purpose of tainting Mueller's public image to induce customers to stop doing business with Mueller.
The alleged reason for this campaign is Mueller's refusal to join Collectors as an expert: "PSA/DNA wanted Mueller to be one of their experts to promote PSA/DNA. Mueller disagreed on the basis of how PSA/DNA did business in authenticating and refused to join PSA/DNA as an expert authenticator. Joe Orlando, president of PSA/DNA, told Mueller at that time that Mueller could either be 'with them, or against them' . . . ."
The complaint includes several examples of transactions that Collectors, JSA, and R&R summarily failed, usually resulting in Mueller issuing customer refunds. In one alleged instance, Mueller purchased items on eBay that Collectors had already authenticated. He removed Collectors' certificate of authentication and resubmitted the items to Collectors for authentication. Collectors refused to authenticate them. Many of Mueller's customers have told him that when they submit his items to Collectors without his certificate of authenticity, they come back as likely authentic, but are failed when accompanied by Mueller's certificate of authenticity.
The complaint alleges three causes of action: intentional interference with prospective economic advantage, conspiracy to commit trade libel, and unfair competition (Bus. & Prof. Code, § 17200).
In response to the complaint, Collectors filed an anti-SLAPP motion. R&R joined in the motion. The court denied it. Although we do not have a reporter's transcript, the minute order simply states: "Defendant has not met its initial burden of demonstrating that any cause of action arises from protected conduct. [Citations.] [¶] In particular, defendant has not met its initial burden to show the alleged conduct involved an 'issue of public interest' or a 'public issue.'" Both Collectors and R&R appealed. We consolidated the two appeals.
DISCUSSION
Collectors and R&R contend the court erred in denying their anti-SLAPP motion. We review the trial court's order denying the anti-SLAPP motion de novo. (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 186.)
"In evaluating an anti-SLAPP motion, the court conducts a potentially two-step inquiry. [Citation.] First, the court must decide whether the defendant has made a threshold showing that the plaintiff's claim arises from protected activity. [Citation.] To meet its burden under the first prong of the anti-SLAPP test, the defendant must demonstrate that its act underlying the plaintiff's claim fits one of the categories spelled out in subdivision (e) of the anti-SLAPP statute." (Bonni v. St. Joseph Health System (2017) 13 Cal.App.5th 851, 859.) "Second — if the defendant meets its burden of showing all or part of its activity was protected — then the court proceeds to the next step of the inquiry. At this stage — applying the second prong of the anti-SLAPP test — the court asks 'whether the plaintiff has demonstrated a probability of prevailing on the claim.'" (Id. at pp. 859-860.)
Subdivision (e) of the anti-SLAPP statue provides: "As used in this section, 'act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue' includes: (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." Collectors and R&R contend subdivision (4) applies here.
The anti-SLAPP statute does not define "'public issue or an issue of public interest.'" "Those terms are inherently amorphous and thus do not lend themselves to a precise, all-encompassing definition." (Cross v. Cooper (2011) 197 Cal.App.4th 357, 371.) However, a frequently cited approach to this issue is found in Rivero v. American Federation of State, County, and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, where the court, after reviewing relevant precedents, described three general categories: "the subject statements either concerned a person or entity in the public eye [citations], conduct that could directly affect a large number of people beyond the direct participants [citations] or a topic of widespread, public interest [citation]." (Id. at p. 924.)
The parties agree the speech at issue is the authentication opinions provided by defendants to prospective purchasers of Mueller's memorabilia. Collectors and R&R offer two bases for that speech being a public issue: the speech concerns celebrities; and the speech is consumer protection speech.
There is some discussion in the complaint about postings on online forums accusing Mueller of selling forgeries. Those allegations seem to be directed at other defendants. None of the parties to this appeal attach any relevance to those allegations, and thus we ignore them for present purposes.
As to the first basis, Collectors argues: "Collectors' opinion letters . . . concern numerous indisputably famous persons in whom the public at large is interested. To provide just a few examples, Mueller's complaint targets Collectors' speech concerning celebrities such as Neil Armstrong, Adolf Hitler, Tom Hanks, Dennis Quaid, Cher, Doris Day, Joe Frazier, Uma Thurman, David Lee Roth, Eddie Van Halen, David Bowie, John Glenn, Christopher Lee, Charles Branson, and Sylvester Stallone. [Citation.] Moreover . . . this court need not restrict its analysis to the fame of the persons identified in Collectors' opinion letters, but also may consider the popularity of celebrity autographs in general. Here, it is not disputed that there is a widespread public interest in celebrity signatures, which is a two billion dollar industry."
This argument falls into the familiar fallacy of generalizing the topic of the speech. "[W]hen considered in the abstract, one could arguably identify a strong public interest in the vindication of any right for which there is a legal remedy. 'The fact that "a broad and amorphous public interest" can be connected to a specific dispute is not sufficient to meet the statutory requirements' of the anti-SLAPP statute. [Citation.] By focusing on society's general interest in the subject matter of the dispute instead of the specific speech or conduct upon which the complaint is based, defendants resort to the oft-rejected, so-called 'synecdoche theory of public issue in the anti-SLAPP statute,' where '[t]he part [is considered] synonymous with the greater whole.' [Citation.] In evaluating the first prong of the anti-SLAPP statute, we must focus on 'the specific nature of the speech rather than the generalities that might be abstracted from it.'" (World Financial Group, Inc. v. HBW Ins. & Financial Services, Inc. (2009) 172 Cal.App.4th 1561, 1570.)
Here, the speech at issue was not about a celebrity, per se. Rather, it was about the authenticity of a signature on a particular piece of memorabilia. And there are only three people who cared whether that piece was authentic: the buyer, the seller, and the authenticator. As such, it was not a topic of widespread interest, nor did it affect a large number of people. (See Terry v. Davis Community Church (2005) 131 Cal.App.4th 1534, 1547 ["a matter of concern to the speaker and a relatively small, specific audience is not a matter of public interest"]; Albanese v. Menounos (2013) 218 Cal.App.4th 923, 936 ["'the focus of the speaker's conduct should be the public interest, not a private controversy'"]; Commonwealth Energy Corp. v. Investor Data Exchange, Inc. (2003) 110 Cal.App.4th 26, 34 ["Just because you are selling something that is intrinsically important does not mean that the public is interested in the fact that you are selling it"].)
Rand Resources, LLC v. City of Carson (2016) 247 Cal.App.4th 1080 reached a similar result. There, the City of Carson signed an agreement that the plaintiff would be the City of Carson's exclusive agent in negotiating with the National Football League to bring a professional team to the city. (Id. at p. 1084.) The City of Carson allegedly breached the agreement, permitting another person to act as their agent in lieu of the plaintiff. (Id. at p. 1086-1087.) Plaintiff sued, and the City of Carson filed an anti-SLAPP motion. (Id. at p. 1088.) The court concluded the matter did not implicate a public issue: "While having an NFL team, stadium, and associated developments in Carson is no doubt a matter of substantial public interest, plaintiffs' complaint does not concern speech or conduct regarding a large scale real estate development or bringing an NFL team to Carson and building it a stadium. It instead concerns the identity of the person(s) reaching out to the NFL and its teams' owners to curry interest in relocating to Carson. The identity of the City of Carson's representative is not a matter of public interest." (Id. at pp. 1093-1094.) Here, too, the speech concerns a private transaction, not a more abstract issue of public interest.
Collectors relies heavily on Stewart v. Rolling Stone LLC (2010) 181 Cal.App.4th 664 (Stewart), which we find readily distinguishable. There, the defendant, publisher of Rolling Stone magazine, published a five-page editorial regarding the indie-rock music scene. (Id. at pp. 670-671.) The layout of the editorial featured abstract, evocative drawings with particular bands listed near the drawing (presumably to give some flavor for the type of music), and cigarette advertisements mixed in. (Id. at pp. 672-673.) Two bands mentioned in the editorial sued, contending that cigarette advertisements next to the editorial amounted to an unauthorized use of the bands' names. (Id. at p. 674.) The court observed that "[t]he five-page Feature prepared by defendants concerns an extremely popular genre of music, and is a creatively crafted, whimsical editorial commentary on the many bands whose musical works have contributed to the development of the genre." (Id. at p. 677.) Because of the popularity of the genre, the court concluded the statements concerned a public issue. (Id. at p. 678.)
We find no comparison at all between the present case and Stewart. At issue in Stewart was an editorial published in a popular national magazine with statements about how certain public performers fit into a popular genre of music. Here, defendants' statements were private communications about a particular object in which the public had no interest.
R&R relies on Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468 (Damon) for the proposition that private conduct can give rise to speech about a public issue. In Damon a former homeowners association manager sued other association members for criticizing his performance in a private association newsletter. (Id. at p. 473.) Since the homeowners association had 3,000 members, the court concluded the newspaper articles concerned a public issue: "As detailed below, each of the alleged defamatory statements concerned (1) the decision whether to continue to be self-governed or to switch to a professional management company; and/or (2) [the former manager's] competency to manage the Association. These statements pertained to issues of public interest within the Ocean Hills community. Indeed, they concerned the very manner in which this group of more than 3,000 individuals would be governed — an inherently political question of vital importance to each individual and to the community as a whole." (Id. at p. 479.)
Once again, there is a yawning, unspannable chasm between the governance of a 3,000 member home owners association, and a private transaction concerning three individuals.
Shifting gears somewhat, R&R contends the speech at issue amounts to protected consumer protection speech. It relies most heavily on Healthsmart Pacific, Inc. v. Kabateck (2016) 7 Cal.App.5th 416 (Healthsmart), which is also easily distinguishable. There, a company specializing in spinal surgery sued attorneys for statements made in a complaint. The complaint, filed on behalf of a spinal surgery patient, alleged the company had bribed legislators in Sacramento to pass legislation that forced insurance carriers to pay inflated prices, and then paid kickbacks to various medical providers for referrals to the company's surgery center. (Id. at p. 421.) The complaint also alleged the company used counterfeit, non-FDA approved medical hardware, as a part of the spinal implant. (Id. at p. 422.) The attorneys then went on various television stations and gave interviews to news networks in which they repeated the allegations. (Id. at pp. 423-425.) The company's suit against the attorneys concerned the statements made on television. (Id. at p. 426.)
The Healthsmart court found the statements concerned a public issue for several reasons. "First, because the alleged counterfeit hardware may have been installed in 'many thousands' of Californians, there is a substantial number of people who may have been directly affected by the alleged counterfeit hardware." "Second, members of the public, as consumers of medical services, have an interest in being informed of issues concerning particular doctors and healthcare facilities." "Third, the assertions of a widespread illegal physician kickback scheme raise issues concerning the integrity of the health care system, which is a matter of widespread public concern." (Id. at p. 429.) "Fourth, the attorney defendants' statements link the alleged counterfeit medical hardware conspiracy, [the owner's] referral kickback scheme, and the bribery of a state legislator. As [one of the attorneys] explained, the legislation that Senator Calderon authored or championed 'was the mechanism by which [the conspirators] were able to perpetuate the fraud.' Bribery of a senator and its connection with health care legislation is undeniably a matter of public concern." (Id. at p. 430.)
The public is undoubtedly concerned about particular conspiracies that affect the integrity of the state Legislature and the healthcare industry. Warnings to the public about such issues plainly qualify as statements concerning a public issue. Here, however, the statements neither concerned a broad industry, nor were they statements made publicly. They were private statements about particular objects, and the only interested parties were the buyer, the seller, and the authenticator. (See Dual Diagnosis Treatment Center, Inc. v. Buschel (2016) 6 Cal.App.5th 1098, 1105 [licensing status of a single rehabilitation facility did not implicate public issue because there was no showing that the facility impacted a large segment of society "or that the statements were part of some larger goal to provide consumer protection information"].)
Collectors also relies on Wilbanks v. Wolk (2004) 121 Cal.App.4th 883 (Wilbanks), but we find it distinguishable for similar reasons. There, a former insurance agent turned "consumer watchdog" who had written several books on viaticals (sales of life insurance policies) set up a Web site to provide consumers information about viaticals. The Web site published an article criticizing a particular broker as unethical. (Id. at pp. 889-890.) The broker sued; the watchdog filed an anti-SLAPP motion. (Id. at p. 890.) The court found the statements concerned a public issue: The watchdog's "statements were a warning not to use plaintiffs' services. In the context of information ostensibly provided to aid consumers choosing among brokers, the statements, therefore, were directly connected to an issue of public concern." (Id. at p. 900.) In reaching this result, however, the court distinguished statements that are "simply a report of one broker's business practices, of interest only to that broker and to those who had been affected by those practices." (Ibid.) Yet that is on point with what we have here: a report about the authenticity of a single item of interest only to the buyer, seller, and authenticator. Accordingly, Wilbanks is inapt.
Because we have concluded defendants' speech did not concern a public issue, we need not address Mueller's argument that the speech is exempt from the anti-SLAPP statute as commercial speech under subdivision (c).
DISPOSITION
The order is affirmed. Plaintiffs shall recover their costs incurred on appeal.
Collectors' request for judicial notice filed on March 9, 2017, is denied. --------
IKOLA, J. WE CONCUR: O'LEARY, P. J. THOMPSON, J.