Opinion
A101353.
11-10-2003
TEDDY ATTELL, Plaintiff and Respondent, v. HOWARD BLUM, Defendant and Appellant.
I. INTRODUCTION
A dispute between two neighboring landowners in Novato, Marin County, led to public picketing and allegedly libelous signs being displayed near plaintiff and respondents place of employment, a Novato real estate office. He sued for defamation and the defendant and appellant filed a motion to strike the complaint under Code of Civil Procedure section 425.16 (section 425.16), the "anti-SLAPP" statute. The trial court denied the motion, finding no public issue involved. We agree and hence affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
Unhappily for both of them, the parties own adjacent parcels and houses on Mendocino Lane, a cul-de-sac in a residential area of Novato. During the time in question, in 2002, plaintiff and respondent Attell (Attell) was renting his property out to tenants. Attell, a long-time resident of the Novato area, was and is an independent real estate agent; since 1999 he has worked out of the Frank Howard Allen real estate offices in Novato.
Attells neighbor, defendant and appellant Blum (Blum), objected to the fact that piles of construction debris and dirt remained in Attells front yard for at least four weeks. These piles were, apparently, the product of plumbing work whereby Attells (then) rental property was being hooked into the local sewer line, a connection pressed upon Attell by the City of Novato because "graywater" had been accumulating on his property due the inadequacy of the prior septic system.
Blum and several other neighbors in the cul-de-sac had complained to both Attell and various local authorities about the prior sewage leak and other problems on Attells rental property. For example, Blum presented to the trial court evidence of numerous complaints made, starting in late 2000 or early 2001, directly to Attell and/or Novato and Marin County authorities by him and other residents of the cul-de-sac concerning (1) Attell speeding on his motorcycle in the cul-de-sac, (2) sewage ponding on Attells property in early 2002, (3) "`junker cars and other debris and garbage" left on the property and, finally, (4) debris piles on Attells property after the plumbing in the house was connected with the local sewer line.
On February 26, 2002, Blum drove his car to the Novato offices of Frank Howard Allen and parked it near that office for about three hours, i.e., from 10:00 a.m. to 1:00 p.m. Taped to the windows of the car was a sign which read: "Why does Teddy Attell, a sales agent for Frank Howard Allen in this office, behave in a manner that closely resembles a `Slum Lord with the rental property he owns in Novato? [¶] A Mendocino Lane property owner 892-4547."
All further dates noted are in 2002.
Attells employer, the office manager, and another Frank Howard Allen agent came out and asked Blum to remove this sign. They stated that the sign might be hurtful to the companys business. Blum replied that he wanted Attell to remove the debris from the neighboring rental property and, if it was not removed the next day, he would return with his car and sign.
Approximately two weeks later, Attell filed a complaint for damages for libel, later amending it to include causes of action for slander, libel and defamation.
On October 7, Blum filed a special motion to strike pursuant to section 425.16, together with supporting declarations and a memorandum of points and authorities. Attell filed an opposition to that motion, also accompanied by supporting declarations and a memorandum of points and authorities. A hearing was held on the motion on November 7. Finding that no public issue was involved, the court denied the motion by its order dated and filed November 20. Blum timely appealed.
III. DISCUSSION
As the lower court recognized in its order and the parties acknowledge in their briefs to this court, the only issue presented by this case is whether the dispute implicated in the defamation lawsuit filed by respondent involves a "public issue" as that term is used in section 425.16, subdivision (b)(1). As that statute makes clear, only a "cause of action against a person arising from any act of that person in furtherance of the persons right of . . . free speech . . . in connection with a public issue" is subject to the motion to strike authorized by the law.
"The consideration of anti-SLAPP motions is a two-step process. [Citation.] The first step is to determine whether `the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. [Citation.] Only if such a showing is made should the court proceed on to the second step, which is to determine whether the plaintiff has demonstrated a probability of prevailing on the claim. [Citations.] . . . [¶] The threshold showing . . . can be taken in two different ways. Prior to Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106 (Briggs ), there had been some confusion as to whether there was always a need for the free speech or petition rights asserted by the defendant to have been exercised in connection with a `public issue or an `issue of public interest. Briggs cleared that up. The rule is now that if the speech was made or the activity was conducted in an official proceeding authorized by law, there is no need that it be connected to a public issue. But if made or conducted apart from an official proceeding, then there is a public issue requirement. [Citations.]" (Commonwealth Energy Corp. v. Investor Data Exchange, Inc.
As, more or less, an alternative to his principal argument that a public issue was involved, Blum also argues that his speech, i.e., the picketing and signs used in the picketing of February 26, fell within the scope of section 425.16, subdivisions (e)(1) and (2) and, therefore, did not need to strictly relate to a public issue. We reject this argument also. The law is clear that, to come within the purview of either of those subdivisions, the speech at issue must arise from—i.e., be based upon — "statements or writings . . . made in official proceedings or in connection with issues under consideration or review by executive or judicial bodies or proceedings." (Briggs, supra, 19 Cal.4th at p. 1114.) Clearly, the statements exhibited on Blums February 26 picketing signs were not made in any such proceeding. But, he urges, because he and others had complained to Marin and Novato authorities about various problems with and on Attells property, that is enough to trigger the application of section 425.16, subdivisions (e)(1) and (2) as defined in Briggs. We disagree. Attells amended complaint, the operative complaint for purposes of our analysis, refers only to the sign displayed by Blum on February 26 (quoted above). Nothing in that complaint relates to, cites or relies upon anything allegedly said by Blum, either directly or indirectly, to a public agency. And nothing in any of Blums moving papers establishes that, as of February 26, any local governmental agency had "under consideration or review" (§ 425.16, subd. (e)(2)) the piles of debris apparently on Attells property on that date. Although Blums declaration in support of his motion to strike notes several complaints filed by him and his allied neighbors regarding other, earlier problems with the property, nothing is alleged regarding complaints concerning the debris on the property resulting from the late January or early February sewer hook-up.
(2003) 110 Cal.App.4th 26, 31, 32 (Commonwealth Energy).)
Up until January of this year, there were no published cases holding that a given dispute did not implicate a "public issue." That month this court changed that by publishing Rivero v. American Federation of State, County, and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913 (Rivero), in which we held that a dispute involving a janitorial supervisors actions toward eight janitors under his supervision in a residential facility at the University of California at Berkeley did not implicate a public issue.
Since Rivero, no less than four other published decisions have come down to the same effect. (See this courts later decision in Du Charme v. International Brotherhood of Electrical Workers Local 45 (2003) 110 Cal.App.4th 107, and Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, Commonwealth Energy, supra, 110 Cal.App.4th 26, and Consumer Justice Center v. Trimedica International, Inc. (2003) 107 Cal.App.4th 595, 600-602.)
The conclusion to be derived from this sudden burst of authority is that not all anti-SLAPP motions trigger application of section 425.16 for the simple, but perhaps too often ignored, reason that, although many disputes between citizens involve verbal or written speech, they do not necessarily implicate matters of any public interest whatsoever. The trial court concluded that this was such a case. We conclude, based on our decision in Rivero and similar authority both before and after Rivero, that it was correct.
The dispute in Rivero involved a SLAPP motion to strike filed by the defendant union in a defamation (and other alleged but related torts) action brought against it by a former supervisor of janitors at the International House on the campus of the University of California at Berkeley. The union had, in an apparent attempt to regain membership it had lost to another union, published three items in which it charged that the supervisor had practiced favoritism, employed family members, solicited bribes, and generally been abusive to janitors under his supervision. (Rivero, supra, 105 Cal.App.4th at pp. 916-917.) These three publications were the basis of the plaintiffs complaint. The trial court denied the unions section 425.16 motion because, among other things, it had not met its burden of showing that the complaints allegations implicated a public issue. (Id. at pp. 917-918.)
We affirmed on that same basis. In so doing, we discussed and distinguished the several earlier cases from other appellate districts that had found a public issue present. We concluded our discussion of these cases by noting that "in each of [them], 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]." (Rivero, supra, 105 Cal.App.4th at p. 924.) That was not the case, we concluded, with respect to a janitorial supervisor on the Berkeley campus: "Here, the Unions statements concerned the supervision of a staff of eight custodians by Rivero, an individual who had previously received no public attention or media coverage. Moreover, the only individuals directly involved in and affected by the situation were Rivero and the eight custodians. Riveros supervision of those eight individuals is hardly a matter of public interest. [¶] The Union disagrees, arguing that any time a person criticizes an unlawful workplace activity the statements concern a public issue because public policy favors such criticism. However, if the Union were correct, discussion of nearly every workplace dispute would qualify as a matter of public interest. We conclude, instead, that unlawful workplace activity below some threshold level of significance is not an issue of public interest, even though it implicates a public policy." (Ibid.)
We went on to reject two alternative bases urged by the union, namely, that because the underlying dispute (1) arose on a publicly-financed university campus, and (2) involved an allegedly major labor dispute, it qualified as a public issue. (Rivero, supra, 105 Cal.App.4th at pp. 924-929.) We concluded by observing: "[W]e simply do not see a public concern in the allegations of Riveros complaint." (Id. at p. 929.)
We feel the same way about disputes between neighboring homeowners in a suburban cul-de-sac, no matter how long-lived and varied those disputes are. And it is those qualities, and only those, which Blum contends provide the public interest in this case. Thus, in support of his public issue contention he cites (1) the several neighbors in the cul-de-sac who agreed with him about Attells numerous and diverse vices qua property owner, (2) the many times he and they had complained to various Novato authorities about those vices, and (3) the several citations and remonstrations those authorities had delivered to Attell in response to those complaints.
We are unconvinced. We conclude that, for the same reasons cited in Rivero, the underlying dispute in this case does not qualify as one of public interest. As we explained there, to qualify as a public issue dispute, there must be either (1) something similar to "a person or entity in the public eye," (2) "conduct that could directly affect a large number of people beyond the direct participants," or (3) "a topic of widespread, public interest." (Rivero, supra, 105 Cal.App.4th at p. 924.) The underlying dispute here implicates nothing and no one in the public eye, and disputes about a neighbors usage of his or her neighboring real property cannot, without much more, qualify as a matter of widespread, public interest. That leaves only the alternative of conduct which could directly affect a large number of people.
Four cases, three of them cited and discussed in Rivero, involved underlying disputes implicating real property usage issues which the appellate courts found could potentially impact significant numbers of people. But at least three of the four involved real estate usage issues of far more potential impact than here. Thus, in Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 15 (Ludwig), the appellate court concluded (albeit with minimal discussion) that "development of a mall, with potential environmental effects such as increased traffic and impaction on natural drainage, was clearly a matter of public interest."
A similar case, Averill v. Superior Court (1996) 42 Cal.App.4th 1170 (Averill) was not discussed by us in Rivero, but was cited by the trial court here. There, the plaintiff was a charitable organization that planned to convert a house in a particular neighborhood in Anaheim into a shelter for battered women. That plan was the subject of a number of hearings before the Anaheim Planning Commission and then its City Council. Some of the homeowners in that neighborhood, including the ultimate litigation defendant, Averill, vigorously opposed that plan. Among other things, Averill lobbied the city council in opposition, wrote negatively about the plan to the city council and then urged her own employer, a major corporation, not to support the plan. The charitable organization sued her for slander and intentional interference with economic advantage. Averill moved to strike its first amended complaint under section 425.16, but the trial court denied her motion on the ground that the issue involved "did not constitute a matter of `great public interest so as to come within the purview of the statute." (Averill, supra, 42 Cal.App.4th at p. 1173.) The appellate court granted her petition for a writ of mandate effectively reversing this order. Citing, among other cases, Ludwig, it had no difficulty concluding (but again without much discussion) that "the allegedly slanderous statements arose in the context of a public issue, i.e., the placement of a shelter in appellants neighborhood." (Id. at pp. 1174-1175.)
Four years later, in Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468 (Damon) another of our sister courts discussed this type of case and proffered some guiding rules for them. The dispute in that case was between a former general manager of a homeowners association of a planned development residential community for seniors and the authors of letters critical of him which had been published in the associations newsletter. In finding a public issue, Justice Haller of the Fourth District, Division One, expressly noted that "[t]he 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.]" (Id. at p. 479, italics added.) She went on to note, in language quoted by us in Rivero, that the statements challenged in the former managers lawsuit "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." (Ibid.)
Before us, Blum relies most strongly on the third real property usage case cited in Rivero, Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400 (Dowling). In that case, the owner of a townhouse in, again, a large condominium complex in San Diego sued the tenants who were renting the townhouse from him and their attorney. The latter, who was working pro bono, had written a letter highly critical of the plaintiff-landlord to the property manager of the complexs homeowners association (HOA). She successfully moved to strike the several causes of action brought against her (for defamation and related torts) on the basis of section 425.16. On appeal, Division One of the Fourth District (albeit a different panel than in Damon) affirmed. In so doing, it specifically noted that the letter the landlord-plaintiff found so offensive "addressed conduct by [the landlord-plaintiff] that arguably involved public issues of nuisance and safety. It stated, for example, that someone had twice entered the Whites locked garage and turned the dial of their water heater off, which `could be extremely dangerous, even fatal, to anyone in that building should the gas remain on, the flame be extinguished, and had the gas collected in the garage. [The lawyer] stated in her declaration that she directed the letter regarding the Whites complaints about the `neighborhood disturbances to [the HOA property manager] at his request, as he would forward such complaints to [HOA] board members. The letter expressly stated that its purpose was to advise the [HOA], through these individuals, of the potential nuisance and the safety concerns." (Id. at p. 1420.)
Although Dowling comes the closest to supporting Blums "public interest" contention here, we find it readily distinguishable. First, it involved a dispute which implicated, via the communication to the HOA property manager, a much larger "public" than was or could have been involved in the Novato cul-de-sac involved here. Second, the opinion specifically notes that the offending communication was specifically requested by the property manager, who intended to forward it to the HOA board. Third, the communication in question involved alleged actions by the landlord which could conceivably have caused gas explosions in a large condominium complex and stated on its face that its "purpose was to advise the [HOA] . . . of the potential nuisance and safety concerns." (Dowling, supra, 85 Cal.App.4th at p. 1420.)
Finally, even if the ruling in Dowling can be said to supports Blums argument here, we are not inclined to embrace that decision. Frankly, we think the underlying dispute in that case simply did not meet the test articulated by an earlier panel of the same court in Damon. To reiterate, the Damon test was that disputes involving, e.g., real property usage rise to the level of "public interest" when the private conduct "impacts a broad segment of society and/or . . . affects a community in a manner similar to that of a governmental entity." (Damon, supra, 85 Cal.App.4th at p. 479.) In our view, the underlying dispute in Dowling did not meet that test.
Nor did the underlying dispute here. As the superior court correctly pointed out, this "action involves conduct on `a quiet cul-de-sac [citation] and affects a small group of neighbors who reside very near plaintiffs property."
IV. DISPOSITION
The order appealed from is affirmed.
We concur: Lambden, J. and Ruvolo, J.