Opinion
D072659
07-20-2018
KAZEM ABBASOV, Plaintiff and Respondent, v. KEVIN PAYNE, Defendant and Appellant.
Law Office of M. David Meagher and Michael David Meagher for Defendant and Appellant. Incorvaia & Associates, Joel L. Incorvaia, and George Ehrich Lenz for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 37-2015-00038905-CU-DF-CTL ) APPEAL from an order of the Superior Court of San Diego County, Joel M. Pressman, Judge. Affirmed. Law Office of M. David Meagher and Michael David Meagher for Defendant and Appellant. Incorvaia & Associates, Joel L. Incorvaia, and George Ehrich Lenz for Plaintiff and Respondent.
Kevin Payne appeals from an order denying his anti-SLAPP motion under Code of Civil Procedure section 425.16. Payne posted comments on a website describing real estate broker Kazem Abbasov as a "scammer" who engaged in bank fraud in connection with the short sale of Payne's neighbor's property, for a price Payne believed was below market value and caused Payne's property to lose value. Abbasov sued Payne for defamation and trade libel. Payne moved to strike the lawsuit under section 425.16, subdivision (b), arguing it arose from protected acts of free speech and was thus subject to dismissal as a SLAPP suit. The trial court agreed with Payne that the lawsuit arose from protected activities but nevertheless denied Payne's motion, finding Abbasov established a probability he would prevail on his claims. We find that Payne's posting does not involve an issue of public interest and therefore is not entitled to protection under section 425.16, subdivisions (e)(3) and (e)(4). We thus affirm the trial court's order denying Payne's motion to strike.
SLAPP is an acronym for "strategic lawsuit against public participation." (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57.) Subsequent unspecified references are to the Code of Civil Procedure.
FACTUAL AND PROCEDURAL BACKGROUND
A homeowner hired Abbasov, a real estate broker, to list and sell his property in Pacific Beach. The property was located in a four-unit complex; Payne also lived in the complex. Because the homeowner owed far more on the mortgage than the property was worth, the property was sold as a short sale, requiring bank approval.
Abbasov claims he received a text message from Payne before the property was listed, asking Abbasov to call him. When Abbasov called, Payne told Abbasov he was a neighbor of the seller and had heard that the listing price would be $450,000. When Abbasov confirmed the planned listing price, Payne became angry and yelled at Abbasov. Payne told Abbasov the price was too low, accused him of running a scam, and blamed him for lowering property values.
Abbasov listed the property at a price of $450,000, and the property ultimately sold for $514,500 with bank approval. Payne believed this was below market value, but Abbasov believed the price reflected the dilapidated condition of the unit.
Shortly after the property sold, Payne posted the following statement on the website Nextdoor.com:
Nextdoor.com touts itself as a "private social network for you, your neighbors and your community. It's the easiest way for you and your neighbors to talk online and make all of your lives better in the real world. And it's free."
"Short Sale Fraud, Bank Fraud, Value Flopping . . . . [¶] . . . [¶]
"My property value just dropped over $100K thanks to Scammers[.]
"I live in a 4[-]unit town house on PB Drive[.] [One] of the units in our building was in distress and Kazem Abbasov was the Realtor authorized by lender (HSBC) for 'Short Sale[.]'
"Rather than list [and] show the property in the open market, Mr. Abbasov had pre-arranged for cohorts [J.R.] and [N.D.] of [real estate investment company] to purchase the property.
"By submitting fraudulent and exaggerated information depicting a dilapidated property (called Flopping) and using multiple accomplices[,] they systematically submitted low-ball offers to lien holder (HSBC) until a short sale was approved far below market value.
"Mr. Abbasov refused to accept offers that far exceeded the short sale price. [J.R.] and [N.D.] paid Mr. Abbasov a large commission for a 'finders fee' (see photo I included)[.]Payne's posting was shared within the neighborhood "Crown Point North" and 14 nearby neighborhoods, reaching an unknown number of readers. The posting received several posted replies and twelve "thanks."
"[J.R.] & [N.D.] are now doing a total gut/remodel with no city permits and without HOA approval as required in our CC&R's.
"The plan is to let Mr. Abbasov list the property once remodel is complete, this plan is detailed on the website for [real estate investment company][.]
"[J.R.] & [N.D.] are basically bribing Realtors to violate their fiduciary duty and rewarding Realtors for defrauding banks and sellers.
"Mortgage and Bank Fraud is a huge problem and this needs to STOP! Please help!!!!"
On the same day, Abbasov claims he received a text message from Payne in which Payne stated he would file a civil suit against Abbasov for fraud. Payne's text also stated he was meeting with an FBI agent to discuss short sale "flopping" and bank fraud, and to provide documents and information relating to the real estate transaction.
Someone (Abbasov believes it was Payne) filed a complaint with the California Bureau of Real Estate regarding the listing and sale of the property. The complaint resulted in a formal investigation that was ultimately closed due to "insufficient evidence."
Abbasov filed a lawsuit against Payne. The operative first amended complaint asserted two causes of action for defamation and trade libel. Both claims were based entirely on the statements Payne posted on Nextdoor.com. The complaint averred that the posted statements were false, were made maliciously, caused Abbasov to suffer emotional distress, and damaged his personal and professional reputation.
Payne responded by filing an anti-SLAPP motion. He admitted he posted the statements on Nextdoor.com but argued the statements were constitutionally protected free speech because they were made in a public forum and involved an issue of public interest. He further argued the statements were privileged because they were made without malice by an interested person to others of like interest. Payne took the position that the statements were opinions, not facts, but even if they were facts, they were "substantially true." In support of this position, he submitted a declaration attesting to his belief that Abbasov was involved in a plan to sell the property to his associates for a "cheap" price, and then, after fixing it up, to represent the (new) sellers to sell "really high." He claimed that the property's low sales price caused his home's value to diminish by approximately $100,000 and submitted a declaration from another real estate agent familiar with the neighborhood who agreed the property was sold under market value. Payne also submitted documents he claimed supported his position that the real estate investment company that purchased the property offered referral fees for leads on distressed property for purchase. He also claimed that the buyer had undertaken an extensive renovation of the unit without obtaining permits beforehand, without obtaining prior HOA approval, and using contractors who failed to provide proof of insurance. Payne stated he filed "numerous complaints" with the HOA and police regarding the construction.
Abbasov opposed the anti-SLAPP motion, arguing that the statements made on Nextdoor.com (a private social network) about him (a private individual), were not made in a public forum and did not involve an issue of public interest, such that SLAPP procedures did not apply. Even if they did, Abbasov argued he could demonstrate a likelihood of prevailing on the merits that precluded dismissal of his lawsuit.
Abbasov submitted a declaration stating he had listed the property on the MLS; he did not know the buyer or its principals before they submitted their offer; and he did not receive any "kickbacks" or remuneration in the transaction other than his half of the sales commission, which the bank ordered to be reduced from six percent to five percent, and from which he paid a sizable fee to a third-party short sale negotiator. Abbasov further declared that he had received only two other offers on the property: a lowball offer of only $350,000, which was not accepted by the seller and thus never submitted to the bank, and a backup offer while short sale approval was pending for $500,000 (higher than the listing price, but lower than the final sales price). Abbasov submitted copies of a property appraisal that the bank obtained independently and of counteroffers between the buyer and seller depicting the negotiation of the ultimate purchase price. Abbasov also submitted a declaration from one of the principals of the real estate investment company that purchased the property stating the buyer never paid Abbasov any compensation in connection with the sale, the property was in "terrible condition and needed extensive repairs," and the buyer spent approximately $70,000 to repair the property.
After considering the arguments and evidence submitted by the parties, the trial court denied Payne's motion, allowing the lawsuit to proceed. The court found that the lawsuit arose from protected activity in furtherance of Payne's right to free speech, as the posting was made in a public forum and involved matters of public interest. Nonetheless, the court found that Abbasov had demonstrated his complaint was legally sufficient and supported by evidence which, if credited, established a prima facie showing sufficient to sustain a favorable judgment.
Payne timely filed this appeal. He agrees with the trial court's determination that his claims arise from protected activity but argues the court erred in finding Abbasov demonstrated a probability of prevailing on the merits because (1) the posting contained nonactionable expressions of opinion; (2) the posting is protected under the common interest privilege codified in Civil Code section 47, subdivision (c), and Abbasov failed to provide evidence of malice; (3) Abbasov failed to produce legally sufficient evidence of damages; and (4) the court failed to apply the principles announced in Baral v. Schnitt (2016) 1 Cal.5th 376 (Baral). Based on our de novo review, we conclude Payne has not established that the lawsuit arises from protected activity and we therefore affirm the trial court's denial of the anti-SLAPP motion.
DISCUSSION
A. Applicable Law
Section 425.16, subdivision (b)(1) provides in relevant part: "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 Constitution or the 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."
"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." (Baral, supra, 1 Cal.5th at p. 384.)
"Review of an order granting or denying a motion to strike under section 425.16 is de novo. [Citation.]" (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn.3.) "We are not bound by the court's findings and conduct an independent review of the entire record. If the trial court's decision is correct on any theory, we must affirm the order." (San Diegans for Open Government v. Har Construction, Inc. (2015) 240 Cal.App.4th 611, 622.)
B. Evidentiary Issues
Each party submitted declarations and exhibits supporting their respective positions with the trial court. Much of this supporting evidence was lodged, not filed, with the court below, and did not appear in the clerk's transcript on appeal. Recognizing this deficiency, Payne moved to augment the record, but only with the exhibits he lodged in support of his motion. We granted Payne's motion.
Without formally moving to augment the record, Abbasov lodged with this court his supporting exhibits lodged below and requested we augment the record with these exhibits. We exercise our discretion to augment the record with Abbasov's exhibits and deem these documents to be a part of the record on appeal. (Cal. Rules of Court, rule 8.155, subd. (a)(1)(A).) In doing so, however, we note that it was Payne's duty to provide this court with an adequate record on appeal, and his failure to include opposing evidence in the record—evidence he contends is insufficient to support the order denying his anti-SLAPP motion—provides an independent basis to deny him relief on appeal. (See In re Marriage of Wilcox (2004) 124 Cal.App.4th 492, 498 ["the inadequacy of the record alone provides a basis to dismiss [appellant's] appeal"]; see also Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [" 'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.' "].)
C. Payne's Posting Does Not Relate to an Issue of Public Interest
The anti-SLAPP statute protects "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." (§ 425.16, subd. (e)(3).) Similarly, section 425.16, subdivision (e)(4) protects 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," but has no "public forum" requirement.
Postings on various websites accessible to the public qualify as public forums for purposes of the anti-SLAPP statute. (See, e.g., Chaker v. Mateo (2012) 209 Cal.App.4th 1138, 1144 [statements were made in a public forum when posted on Internet website and social networking website which provided open forum for members of the public to comment on a variety of subjects]; ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1006 (ComputerXpress) [websites qualified as public forums].) Although parties must take certain steps to post and read information on Nextdoor.com, such as entering their name and address, we conclude the social media site is sufficiently open to members of the public to constitute a public forum under the anti-SLAPP statute.
However, posting information on a website does not necessarily transform it into an issue of public interest. (D.C. v. R.R. (2010) 182 Cal.App.4th 1190, 1226 ["not every [website] post involves a public issue"].) Section 425.16 does not define "an issue of public interest," but the statute has been found to apply in cases where an issue is of interest to a "definable portion of the public (a private group, organization, or community)." (Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107, 119 (Du Charme).) We conclude the dispute between Payne and Abbasov fails to meet this standard.
The dispute here involves a single homeowner, Payne, who is upset about a perceived loss of value to his property—i.e., one of four units in a homeowners association. Although the Du Charme court did not "determine what limitations there might be on the size and/or nature of a particular group, organization, or community" required to satisfy the statute (Du Charme, supra, 110 Cal.App.4th at p. 119), other courts have found a public interest to exist where a significantly larger portion of the public was directly impacted. (See, e.g., Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479 [allegedly defamatory statements about manager of a homeowners association governing 3,000 individuals in 1,633 homes pertained to issues of public interest within that particular community; statements were made during time when association was making decision concerning future management]; Ruiz v. Harbor View Community Assn. (2005) 134 Cal.App.4th 1456, 1468-1469 [letters written by homeowners association's attorney fell within the anti-SLAPP statute, where the letters formed part of a debate concerning an ongoing dispute affecting residents of 523 lots].)
There also is no indication that Payne and the other homeowners in his unit are involved in any controversy, dispute or discussion surrounding the statements contained in Payne's posting. Although Payne shared his posting with other neighbors who he contends may be interested in the alleged lowering of his property value, he cannot manufacture a broader dispute where one does not exist. "[A] person cannot turn an otherwise private matter into a matter of public interest simply by communicating it to a large number of people." (Bikkina v. Mahadevan (2015) 241 Cal.App.4th 70, 82 (Bikkina).)
As the Du Charme court explained, "in cases where the issue is not of interest to the public at large, but rather to a limited, but definable portion of the public . . . , the constitutionally protected activity must, at a minimum, occur in the context of an ongoing controversy, dispute or discussion, such that it warrants protection by a statute that embodies the public policy of encouraging participation in matters of public significance." (Du Charme, supra, 110 Cal.App.4th at p. 119.)
Payne also asserts his statements are protected because there is a public interest in "discussion about short-sales, short-term rentals and a host of other actions that adversely affect property values . . . ." But Payne's "broad assertions" about the public's interest in these general topics "are not closely connected to his actual statements." (Bikkina, supra, 241 Cal.App.4th at pp. 82-83; id. at p. 84 [defendant's "statements were only remotely related to the broader subject of global warming or climate change, and involved specific accusations of plagiarism and use of a contaminated sample"].) Payne's statements make clear that he is focused on a private dispute with Abbasov, impacting his own private financial interests. Payne refers to his property, and notes that his property value has dropped by $100,000; Payne explains that he lives in a four-unit townhome, in the context of describing how his property was negatively impacted by Abbasov's short sale; Payne describes in more detail his concerns regarding Abbasov's actions (which caused his property value to drop); and Payne makes various accusations against Abbasov in explaining how Abbasov is responsible for the diminution in Payne's property value. Payne's general references to "[m]ortgage and [b]ank fraud" do not convert his private dispute into an issue of public interest. (Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 111 [although pollution is a matter of general public interest, defendants' alleged statements "were not about pollution or potential public health and safety issues in general, but about [the plaintiffs'] specific business practices" and thus were not protected activity under § 425.16], disapproved on another ground in Baral, supra, 1 Cal.5th at p. 392; World Financial Group, Inc. v. HBW Ins. & Financial Services, Inc. (2009) 172 Cal.App.4th 1561, 1570 [" '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."].)
Payne also claims he was "discussing a public issue, a complaint with the HOA, and the San Diego Police Dep[artment]," but neither complaint is specifically referenced in his posting and Abbasov's lawsuit is not premised on those complaints. --------
Having determined that Payne has not met his burden with respect to the first step of the anti-SLAPP analysis, we need not reach the second question, whether Abbasov demonstrated a probability of prevailing on the merits of his claims. (See City of Cotati v. Cashman (2002) 29 Cal.4th 69, 80-81.)
DISPOSITION
The order is affirmed. Abbasov is entitled to costs on appeal.
GUERRERO, J. WE CONCUR: NARES, Acting P. J. HALLER, J.