Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BC380640, Ruth A. Kwan, Judge.
Law offices of James A. Kim and James A. Kim for Defendant and Appellant.
Paul Park, in pro. per., for Plaintiff and Respondent.
ALDRICH, J.
I.
INTRODUCTION
Defendant and appellant Jin Won Park (defendant) appeals from the denial of his anti-SLAPP motion (Code Civ. Proc., § 425.16, section 425.16) that permitted the case brought by plaintiff and respondent Paul Park (plaintiff) to proceed. We affirm because defendant did not meet his burden to show that his allegedly defamatory remarks were made in connection with an ongoing debate, controversy, dispute or discussion.
“SLAPP is an acronym for Strategic Lawsuit Against Public Participation. [Citation.]” (Manhattan Loft, LLC v. Mercury Liquors, Inc. (2009) 173 Cal.App.4th 1040, 1045, fn. 3.)
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Initial facts.
Plaintiff has been serving as the President of the California Korean American Grocers Association (CA KAGRO) since 2004, having been elected to the position in June 2004. This is a highly coveted and respected position. CA KAGRO is a nonprofit corporation representing the interests of approximately 3,000 Korean-American grocers and liquor store owners who are members of the organization.
In October 2007, defendant was elected president of Los Angeles, KAGRO, an affiliate of CA KAGRO.
B. The procedure in the present case.
1. The complaint for slander.
On November 13, 2007, plaintiff filed a complaint for slander against defendant. Plaintiff alleged defendant uttered false words of a defamatory nature in the presence of other KAGRO members that “plaintiff, while acting as the President of [CA] KAGRO, gave [defendant] an empty envelope during the funeral service held for [defendant’s] deceased mother in [September] 2006. [¶] [] These words [are] slanderous per se because they attribute a general disqualification or lack of character for the office of president of [CA] KAGRO and therefore tend to injure plaintiff in his position as the incumbent president of [CA] KAGRO.”
It appears that plaintiff was the president of CA KAGRO, however, he also claims to have ownership rights to the “KAGRO” trademark, and often the parties simply discuss “KAGRO” rather than “CA KAGRO.”
2. Defendant’s motion to strike.
Defendant filed an anti-SLAPP motion to strike pursuant to section 425.16. Defendant asserted that the alleged defamatory statements were “regarding Plaintiff’s fitness for office in a 3,000 member non-profit organization – a constitutionally protected right.” That is, according to defendant, the objected to comments were “ ‘free speech in connection with a public issue or an issue of public interest’ ” and thus, constituted protected activity pursuant to section 425.16.
Defendant attached the pleadings from other cases to support his statement that the present case was only one matter “involving an ongoing organizational dispute between KAGRO-related associations” involving the use of the “KAGRO” mark and whether it could be used by other organizations. Defendant did not attach his own declaration to the motion.
Plaintiff apparently faxed to defendant an opposition to the motion to strike on March 5, 2008. Defendant stated he had not agreed to accept service by facsimile. In his declaration, plaintiff declared in part, “defendant... repeatedly uttered the lie that I gave an ‘empty’ condolence check on behalf of California Korean Grocers Association (... CA KAGRO) during the funeral service held for his deceased mother in Sept. 2006 [¶] [D]efendant... repeated this lie to many fellow members of CA KAGRO and used the lie to denigrate my character as President of CA KAGRO. [Defendant] repeatedly stated that ‘someone who passes an empty [envelope without a] condolence check during a funeral service should not hold the esteemed position of the President of CA KAGRO.”
On March 7, 2008, the trial court denied defendant’s motion to strike. In ruling on the motion, the trial court considered the late-filed opposition filed by plaintiff. The court, after a thorough and accurate recitation of the law, held that defendant had not met his burden to show that the allegations of slander against defendant arose from an act in furtherance of defendant’s right to free speech in connection with a public issue or an issue of public interest because the statements were not made in connection with an ongoing controversy or debate. The trial court did not reach the second prong, but stated that had it reached the issue, the court would have concluded that plaintiff had not met his burden to prove a probability of success.
At the end of the March 7, 2008 hearing, pursuant to stipulation, the trial court transferred the matter to another court to be handled as a limited jurisdiction case.
On March 11, 2008, the court found the present case and Case No. BC368782 were related and placed all pending issues off calendar. Previously, on March 4, 2008, the trial court struck plaintiff’s complaint in Case No. BC368782 when it granted an anti-SLAPP motion.
On March 19, 2008, defendant filed another anti-SLAPP motion to strike in the present matter, attaching his own declaration as an exhibit. The trial court denied the motion ruling that it no longer had jurisdiction to rule as the matter had been transferred to a limited jurisdiction court.
Defendant appealed from the March 7, 2008 ruling denying his anti-SLAPP motion to strike.
III.
DISCUSSION
A. Motions to strike under section 425.16.
The Legislature enacted section 425.16 in an effort to curtail lawsuits brought primarily “to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” (§ 425.16, subd. (a).) The purpose of section 425.16 is to encourage continued participation in matters of public significance and to ensure participation is not chilled through abuse of the judicial process. Section 425.16, subdivision (b)(1) provides: “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”
Section 425.16 sets forth “a two step process for determining whether an action is a SLAPP. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. [Citation.] ‘A defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause fits one of the categories spelled out in section 425.16, subdivision (e)’ [citation].” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.)
Section 425.16, subdivision (e) states in part that an “ ‘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:... (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”
Section 425.16, subdivision (e) also states that an “ ‘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....”
To determine whether a defendant has met the “arising from” requirement, “a court considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ [Citation.]” (Navellier v. Sletten, supra, 29 Cal.4th at p. 89; § 425.16, subd. (b)(2).)
If the defendant satisfies its burden of establishing that the challenged cause of action arises from protected activity, then the plaintiff must demonstrate a probability of prevailing on the claim. (§ 425.16, subd. (b)(1); Governor Gray Davis Com. v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 456.)Plaintiffs “responding to an anti-SLAPP motion must ‘ “state[] and substantiate[] a legally sufficient claim.” ’ [Citations.] Put another way, the plaintiff ‘must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.’ [Citations.] In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim. [Citation.]” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821, partially abrogated by statute on another point as discussed in Hutton v. Hafif (2007) 150 Cal.App.4th 527, 547-550; see also, Nygård, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1036.)
The standard of review of an order granting an anti-SLAPP motion is de novo, and we therefore conduct an independent review of the entire record. (Governor Gray Davis Com. v. American Taxpayers Alliance, supra, 102 Cal.App.4th at p. 456; Terry v. Davis Community Church (2005) 131 Cal.App.4th 1534, 1544.) Section 425.16, subdivision (a) mandates that the section is to be broadly construed. (Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 473 (Damon); Governor Gray Davis Com. v. American Taxpayers Alliance, supra, at p. 456.)
B. Defendant did not meet his burden of proof.
Plaintiff sued for slander. As pertinent here, “[s]lander is a false and unprivileged publication, orally uttered,... which: 3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits....” (Civ. Code, § 46, subd. 3.)
Defendant argues that even if the statements he made were defamatory, they cannot give rise to a cause of action because they are privileged pursuant to section 425.16 subdivision (e)(3) and (4) as statements of public interest. We note that unlike subdivision (e)(3), subdivision (e)(4) does not require a public forum. Courts have found protected statements made in private conversations concerning public issues. (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 897; Terry v. Davis Community Church, supra, 131 Cal.App.4th at pp. 1545-1546; Averill v. Superior Court (1996) 42 Cal.App.4th 1170 [dismissal where woman who was against a plan to convert a home into a battered women’s shelter was sued for slander based on her request that her employer not make charitable contributions to the shelter].) Further, in that section 425.16 is to be broadly construed, statements can be protected when, among other possibilities, the issue discussed is one in which the public takes an interest, even if it does not have public significance. (Nygård, Inc. v. Uusi-Kerttula, supra, 159 Cal.App.4th at pp. 1041-1042.)
“ ‘The definition of “public interest” within the meaning of the anti-SLAPP statute has been broadly construed to include not only governmental matters, but also private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a governmental entity. [Citations.]’ [Citations.]” (Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107, 115 (Du Charme), citing Damon, supra, 85 Cal.App.4th at p. 479; accord, Kurwa v. Harrington (2007) 146 Cal.App.4th 841, 846.) This can include issues of interest to a narrow segment of the population. (Du Charme, supra, at p. 118.)
For example, in Damon, supra, 85 Cal.App.4th 468 “a former manager of a homeowners association[] brought a defamation complaint against several of the association members, two board of directors members, and a private homeowners association club” (id. at p. 471, fn. omitted) after allegedly defamatory statements criticizing the manager were published in newsletters and at an association board meeting. (Id. at pp. 472-473.) The statements were designed to persuade homeowner association members to change the associations’ governance system by terminating the manager’s services and instead hiring a professional management company. (Ibid.)
Damon held that the statements were of public interest because they concerned the governance of 3,000 individuals in connection with the board election and recall campaign, both inherently political matters of vital importance to the homeowners. (Damon, supra, 85 Cal.App.4th at pp. 478-480.) Damon also held that both forums involved (the newsletter and statements made during board meetings) were public forums within the meaning of section 425.16.
In Macias v. Hartwell (1997) 55 Cal.App.4th 669, political flyers were distributed to union members prior to the union’s election of officers. They were designed to persuade members to vote against a particular candidate for union office. (Id. at p. 671.) Macias found that the objected to statements in the flyers involved a public issue as they related to a political campaign (the quintessential subject of constitutional protections) affecting 10,000 members on issues related to the qualification of an opponent. (Id. at pp. 673-674.)
When the issue is of interest to a limited group or segment of the public, to be protected the activity must at a minimum, occur in the context of an ongoing controversy, dispute or discussion. (Du Charme, supra, 110 Cal.App.4th at p. 119.) This serves the purpose of section 425.16 to encourage “participation in an ongoing controversy, debate or discussion.” (Du Charme, supra, at p. 118, fn. omitted, & p. 119.)
Thus, for example, in Du Charme, supra, 110 Cal.App.4th 107, dismissal of the lawsuit was not appropriate where a statement was posted on a union website that the union’s business manager’s employment had been terminated for financial mismanagement. (Id. at p. 119.) The statements were informational and not made in connection to any issue under consideration and review by an official proceeding and there was no ongoing discussion, debate, or controversy. Thus, the statements were not relating to a public issue of public interest. (Id. at p. 116.)
Further, in Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913 (Rivero), a union reported that a supervisor had been terminated for unlawful workplace activity. Rivero held that the “allegedly defamatory statements were not made in connection with a public issue or an issue of public interest because they concerned the supervision of a staff of eight by an individual who had previously received no public attention or media coverage, and the only people directly involved in and affected by the situation were the supervisor and his eight supervisees. [Citation.] [Rivero] noted that mere publication (in a newsletter, for example, or on a Web site) should not turn otherwise private information (e.g., job termination) into a matter of public interest. (Id. at p. 926.)” (Du Charme, supra, 110 Cal.App.4th at p. 117.) Rivero stated that “[i]f the mere publication of information in a union newsletter distributed to its numerous members were sufficient to make that information a matter of public interest, the public-issue limitation would be substantially eroded, thus seriously undercutting the obvious goal of the Legislature that the public-issue requirement have a limiting effect.” (Rivero, supra, at p. 926; see also, Kurwa v. Harrington, Foxx, Dubrow & Canter, LLP (2007) 146 Cal.App.4th 841 [ophthalmologist Kurwa is in partnership with Kislinger; Kislinger’s attorneys sent a letter to a health maintenance organization suggesting the organization sever ties with the partnership and create a business relationship solely with Kislinger; statements in the letter were not of public interest even though the HMO had thousands of patients; there was no ongoing controversy as to whether Kurwa should remain an authorized provider under the HMO’s health plan].)
Here, the statements attributed to defendant about plaintiff, impugns and disparages plaintiff’s character and calls into question plaintiff’s fitness to act as CA KAGRO’s president. Even though there was no showing that the statements were made during the course of an election or in some other circumstance like a referendum that can be considered “political,” for purposes of discussion we assume they would have been of interest to the KAGRO community and were of “public interest.”
However, as the trial court found, there was no showing that the statements were made in the context of a continuing controversy. Unlike Damon and Macias, the purportedly defamatory statements uttered by defendant were not in the context of an upcoming referendum or election. There was no ongoing controversy, debate or discussion at the time defendant uttered his statements about the empty envelope. Although the subject matter of the allegedly defamatory statements was about plaintiff’s qualification to be CA KAGRO’s president, the dispute was a private matter between one member of a KAGRO organization (defendant), and plaintiff.
Defendant did not submit his declaration in support of his anti-SLAPP motion. To support his argument that there was an ongoing dispute, defendant relied totally on the pleadings from other cases that he had attached to his anti-SLAPP motion. From the record, the following can be discerned about the following four matters brought forth by defendant:
1. On October 10, 2002, CA KAGRO members sued its officers and directors in Case No. BC283087. The case was dismissed on January 15, 2004.
2. On April 9, 2004, CA KAGRO sued National KAGRO for trademark infringement in the United States District Court, Central District in Case No. CV04-2511. Plaintiff signed the settlement on behalf of CA KAGRO.
3. On June 28, 2005, in Case No. BC335730, plaintiff sued another KAGRO member, Jae Hyun Pak, doing business as M&H Market, for defamation. The purportedly tortious activity occurred between December 21, 2004 and May 27, 2005, and purportedly led to the April 2005 dissension and difficulties in California KAGRO and National KAGRO’s decision to secede from CA KAGRO. The case was dismissed for plaintiff’s failure to appear.
4. On April 2, 2007, plaintiff sued Bok Ki Kim, another KAGRO member in Case No. BC368782. The complaint for intentional infliction of emotional distress and temporary restraining order alleged that beginning in January 2003, Bok Ki Kim declared himself president of CA KAGRO and conspired to confuse plaintiff’s business to vendors and “spread malicious rumors that Plaintiff has been troubled with members as the president....” In addition to other relief, the complaint sought an injunction to prevent Bok Ki Kim from calling or conducting any meetings and from using the KAGRO logo.
Defendant asserts that the present case “arises from alleged statements regarding the fitness of [plaintiff] in his position as president of [CA] KAGRO[]” and this was an ongoing dispute demonstrated by the pleadings from the other lawsuits. However, this conclusion is not supported by the evidence defendant presented.
All we know about Case No. BC283087 is that it was filed in October 2002 by CA KAGRO members against its officers and directors and it was dismissed in January 2004, years before the alleged tortious conduct in the present case that occurred after the September 2006 funeral. Thus, we do not know the substance of Case No. BC283087, but we do know that it was dismissed years before the present action.
Case No. CV04-2511 was a trademark infringement matter filed in April 2004, and settled thereafter. Thus, it did not involve issues related to plaintiff’s competency.
In Case No. BC335730, plaintiff sued another KAGRO member for defamation occurring between December 21, 2004 and May 27, 2005. These acts occurred years before the current charges and do not demonstrate that defendant’s statements about the empty envelope were made during the same controversy.
This brings us to Case No. BC368782, the case the trial court deemed related to the present case on March 11, 2008, after the court denied defendant’s anti-SLAPP motion. To the extent Case No. BC368782 involves a dispute with regard to the KAGRO name, it is unrelated to the present case which has no such allegations. Case No. BC368782 has some similarity to the present lawsuit in that both cases involve accusations of false statements being made against plaintiff. However, the alleged defamatory statements in our case occurred after September 2006, and the record does not contain any information that the purportedly false statements described in Case No. BC368782 occurred in the same time frame. All we know is that in Case No. BC368782 the objected to statements began in January 2003. Further, defendant provided no facts linking together the underlying facts or substance of the two cases.
Thus, the evidence before the trial court when it ruled on defendant’s anti-SLAPP motion was insufficient to link the present lawsuit to other litigation or to the ongoing controversies involved in the other cases. The pleadings from the other lawsuits simply show isolated events unconnected to the defamation charges alleged in the present case. Defendant did not show that the statements relating to the envelope were part of a campaign to attack plaintiff’s qualification to lead CA KAGRO.
Because defendant did not meet his burden to establish that the challenged cause of action arises from protected activity, we need not address if plaintiff showed a probability of prevailing on his claim.
The trial court did not err in denying defendant’s anti-SLAPP motion pursuant to section 425.16.
IV.
DISPOSITION
The order is affirmed. Defendant Jin Won Park is to pay all costs on appeal.
We concur: KLEIN, P. J., CROSKEY, J.