Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from an order of the Superior Court of Orange County, Gregory Munoz, Judge, Super. Ct. No. 05CC11632
Peters & Freedman, Michael G. Kim, and Simon J. Freedman for Plaintiff and Respondent.
Philip A. Putman for Defendant and Appellant Elizabeth McMahon.
Arnold A. McMahon, in pro per., for Defendant and Appellant Arnold A. McMahon.
OPINION
IKOLA, J.
Defendants Elizabeth McMahon and Arnold A. McMahon (the McMahons) appeal from an order denying their anti-SLAPP motion to strike libel and invasion of privacy causes of action asserted by plaintiff Peters & Freedman LLP (the law firm). The causes of action are not subject to the anti-SLAPP statute because the allegedly defamatory statements do not concern issues under official review or issues of public interest. (Code Civ. Proc., § 425.16, subd. (e).) We affirm.
“SLAPP is an acronym for ‘strategic lawsuit against public participation.’” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.)
All further statutory references are to the Code of Civil Procedure.
FACTS
The law firm filed the operative first amended complaint in December 2005. It asserted 64 causes of action against the McMahons based on 21 statements posted on their Web site. It asserted three causes of action (libel, libel per se, and invasion of privacy) for each of the 21 statements, attached to the complaint as exhibits. It also asserted a cause of action styled, “Permanent Injunction.” The statements accused the law firm and its attorneys of committing illegal and unprofessional conduct while representing homeowners associations in various lawsuits.
Two other defendants did not join in the anti-SLAPP motion and are not involved in this appeal.
The McMahons filed an anti-SLAPP motion to strike the complaint, which the court denied. It impliedly found the McMahons showed the statements arose from activity protected by the anti-SLAPP statute, and expressly found the law firm showed a probability of prevailing on their causes of action.
DISCUSSION
The order denying the McMahons’ anti-SLAPP motion to strike the complaint is directly appealable. (§ 425.16, subd. (i).) It is subject to our independent review. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325.)
The anti-SLAPP statute 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.” (§ 425.16, subd. (b)(1).)
The McMahons bear the initial burden of establishing the challenged causes of action are “based on [their] protected free speech or petitioning activity.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89 (Navellier).) If the McMahons meet their burden, the law firm then bears the burden to “establish[] that there is a probability that [it] will prevail on the claim.” (§ 425.16, subd. (b)(1).) The parties agree the law firm’s causes of action arise from the allegedly defamatory statements. The issue is whether those statements are protected by the anti-SLAPP statute.
Though the parties briefed this issue below, they did not brief it on appeal initially. At our invitation, they filed supplemental briefs before oral argument on the issue. We later granted rehearing to obtain further briefing.
To meet their initial burden, the McMahons must show the statements “‘fit[] one of the categories spelled out in section 425.16, subdivision (e).’” (Navellier, supra,29 Cal.4th at p. 88.) “The only way a defendant can make a sufficient threshold showing is to demonstrate that the conduct by which the plaintiff claims to have been injured falls within one of those four categories.” (Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1130 (Weinberg).)
Section 425.16, subdivision (e) provides, “[a]s 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; (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.”
The McMahons Fail to Show the Statements Concern Issues Under Official Review
The McMahons contend the statements challenged in the complaint are protected because they concern issues under official review. They assert each statement falls within section 425.16, subdivision (e)(2), which protects statements made “in connection with an issue under consideration or review by a . . . judicial body, or other official proceeding authorized by law.” (§ 425.16, subd. (e)(2).)
By its plain words, section 425.16, subdivision (e)(2), sets forth “[t]he necessity of a connection to an issue under review in a proceeding, and not merely to a proceeding.” (Paul v. Friedman (2002) 95 Cal.App.4th 853, 866 (Paul).) There must be both a “pending proceeding” and a “connection to an issue before the tribunal.” (Id. at p. 867.) In contrast, the subdivision “does not accord anti-SLAPP protection to suits arising from any act having any connection, however remote, with an official proceeding.” (Id. at p. 866.) Thus, “it is insufficient to assert that the acts alleged were ‘in connection with’ an official proceeding. There must be a connection with an issue under review in that proceeding.” (Id. at p. 867, italics added.)
The “under review” requirement dooms the McMahons’ anti-SLAPP claims. The McMahons contend the statements in the Web site articles are protected because they refer to the law firm’s litigation conduct in various lawsuits. But the anti-SLAPP statute does not protect statements that merely mention judicial proceedings. “[I]t is insufficient to assert that the acts alleged were ‘in connection with’ an official proceeding. There must be a connection with an issue under review in that proceeding.” (Paul, supra, 95 Cal.App.4th at p. 867.) While the law firm’s reported conduct may have occurred before judicial bodies, the McMahons fail to show any of the conduct itself was under review by an official body in a pending proceeding when the articles were posted. (§ 425.16, subd. (e)(2); Paul, supra, 95 Cal.App.4th at p. 867.) Thus, the statements are not protected by section 425.16, subdivision (e)(2).
Of the 21 statements, the McMahons assert only two are protected by section 425.16, subdivision (e)(1), which protects statements “made before a . . . judicial proceeding, or any other official proceeding authorized by law.” Exhibit 19 to the complaint is a Web site posting containing what purports to be a complaint filed in a civil action. Exhibit 23 is a Web site posting containing what purports to be a tentative ruling from a civil action. The filed complaint itself would be protected by section 425.16, subdivision (e)(1), as a statement made before a judicial body. So would the original tentative ruling. But the Web site postings incorporating those documents are not statements made before a judicial body or any other official proceeding. They are not protected by 425.16, subdivision (e)(1).
Some of the statements challenged in the complaint require additional analysis. One of the statements, contained in exhibit 13 to the complaint, mentions the law firm’s representation of a homeowners association. Nothing in the statement suggests what issue is under review by any judicial body or other official proceeding authorized by law. The bare reference to a homeowners association is insufficient. While homeowners associations may be “‘quasi-governmental’” entities in a colloquial sense (Cohen v. Kite Hill Community Assn. (1983) 142 Cal.App.3d 642, 651), the McMahons present no authority showing their every consideration constitutes review by an official proceeding. (Compare Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 199-200 [hospital peer review is an “official proceeding” because state licensing scheme requires it and its decision are reviewed by administrative mandate].) Exhibit 16 to the complaint mentions an action against one of the law firm’s lawyers that alleged he perpetrated a fraudulent foreclosure. But the McMahons did not invoke section 425.16, subdivision (e)(2), when they moved to strike the causes of action based on this exhibit; moreover, they fail to show the action was still pending when the statement was posted. Exhibits 17 and 25 are in the format of letters to the California State Bar president. No evidence shows the letters were actually sent to him. Also, the letters were addressed to a private law office. They do not institute official proceedings anymore than letters addressed to “George W. Bush, Crawford, Texas” would be considered official complaints against federal agencies. For these reasons too, the McMahons have failed to show any of the posted statements concern issues under review by a judicial body or other official proceeding.
The McMahons Failed to Show the Statements Concern Issues of Public Interest
The McMahons also contend the statements are protected because they concern issues of public interest. They assert each statement falls within section 425.16, subdivision (e)(3), which protects statements “made in . . . a public forum in connection with an issue of public interest.” They further assert each statement falls within section 425.16, subdivision (e)(4), which protects statements made “in furtherance of . . . the constitutional right of free . . . speech in connection with a public issue or an issue of public interest.”
The common element of these protected speech categories is the requirement that the statements be made in connection with an issue of public interest. “The Legislature intended this requirement to have a limiting effect on the types of conduct that come within the third and fourth categories of the [anti-SLAPP] statute.” (Weinberg, supra,110 Cal.App.4th at p. 1132.) While the anti-SLAPP statute protects statements concerning an issue of public interest, it “does not provide a definition for ‘an issue of public interest,’ and it is doubtful an all-encompassing definition could be provided.” (Ibid.)
We assume without deciding the Web site on which the statements were posted is a “place open to the public or a public forum.” (§ 425.16, subd. (e)(3).)
The McMahons note three examples courts have used to illustrate issues of public interest. “The court in Rivero [v. American Federation of State, County and Municipal Employees, AFL-CIO (2003)] 105 Cal.App.4th 913 [(Rivero)], described 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.” (Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 111 (Mann).)
The McMahons contend the statements match up to each of these examples. Their contentions are unsupported by citations to the record or persuasive case law.
First, the McMahons claim the law firm is “in the public eye.” (Mann, supra, 120 Cal.App.4th at p. 111.) They assert the law firm represents more than 500 homeowners associations with tens of thousands of members, lobbies for homeowners associations, and has appeared on television. Even if true, a private law firm does not inject itself into the public eye merely by having many clients or making isolated media appearances. (See Rivero, supra, 105 Cal.App.4th at p. 924 [citing “public eye” cases involving a “‘nationally known figure,’” a nationally broadcast television show, and a large church subjected to “extensive ‘media coverage,’” italics added].)
Second, the McMahons claim the law firm’s conduct “affect[s] large numbers of people beyond the direct participants.” (Mann, supra, 120 Cal.App.4th at p. 111.) But the relevant focus here is on “the statement or activity precipitating the claim,” not the conduct precipitating the statement that precipitates the claim. (Ibid.) The question is whether the statements could affect large numbers of people. The McMahons fail to explain how the posted criticisms of the law firm could affect anyone other than the law firm, except by appealing to the public’s general interest in attorneys and court proceedings. This claim spills into the last of the three Mann examples.
Third and finally, the McMahons claim the statements “involved a topic of widespread public interest.” (Mann, supra, 120 Cal.App.4th at p. 111.) They fail to cite any evidence in the record showing the law firm’s conduct, as described in the statements, has generated any widespread interest beyond the McMahon’s own Web site. (Weinberg, supra,110 Cal.App.4th at p. 1133 [defendant cannot create public interest by publicizing private information]; Rivero, supra, 105 Cal.App.4th at p. 926 [same].)
The McMahons instead resort to broad principals and themes. They assert the public is generally interested in allegations of attorney misconduct, court proceedings, and homeowner associations. This general interest, if any, is insufficient.
To show an issue of public interest, “the assertion of a broad and amorphous public interest is not sufficient.” (Weinberg, supra,110 Cal.App.4th at p. 1132.) Despite the general interest in public safety, allegations of criminal conduct are not necessarily protected by the anti-SLAPP statute. (Id. at pp. 1134-1136.) Despite the general interest in public universities, allegations of employee wrongdoing at the University of California are also not protected. (Rivero, supra, 105 Cal.App.4th at pp. 924-925.) Despite the general interest in public health, statements by a medical corporation to a health maintenance organization are not protected (Kurwa v. Harrington, Foxx, Dubrow & Canter, LLP (2007) 146 Cal.App.4th 841, 848-849); neither are statements concerning the efficacy of a particular herbal supplement (Consumer Justice Center v. Trimedica International, Inc. (2003) 107 Cal.App.4th 595, 601).
The McMahons cite no evidence that the public has shown particular widespread interest in the specific activities mentioned in the statements. They have not shown the alleged attorney misconduct has generated public scrutiny. (See Weinberg, supra,110 Cal.App.4th at p. 1132 [unreported accusations of criminal conduct not protected].) They have not shown the particular court proceedings are subject to more attention than any other matter of public record. (See Rivero, supra, 105 Cal.App.4th at pp. 924-925 [specific illegal employment conduct at public university not an issue of public interest “even though it implicates a public policy”; rejecting claim that “every allegedly inappropriate use of public funds, no matter how minor, would constitute a matter of public interest”].) And they fail to show the specific homeowner association activities have captured widespread public interest. While homeowner associations no doubt interest some of their members, their every act is not so weighty as to constitute an issue of public interest.(See Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479 [statements to homeowners association members involved “issues of public interest” because “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”].)
The McMahons thus fail to show the statements were made in connection with issues of public interest. Rather, they appear to be “matter[s] of concern to the speaker and a relatively small, specific audience” of other persons who feel wronged by the law firm and want to share their grievances among themselves. (Weinberg, supra, 110 Cal.App.4th at p. 1132.) For statements to merit protection by the anti-SLAPP statute, “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 . . . .’” (Id at pp. 1132-1133.) Statements made in “a private campaign of vilification” — such as this — do not interest the public and are not protected. (Id. at p. 1135.)
Because we do not reach whether the law firm showed a probability of prevailing on the merits, its motion to take additional evidence is denied as moot.
DISPOSITION
The order denying the anti-SLAPP motion is affirmed. The law firm shall recover its costs on appeal.
WE CONCUR: SILLS, P. J., RYLAARSDAM, J.