Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. 30-2009-00290054 Robert J. Moss, Judge.
Law Office of Don C. Burns and Don C. Burns for Plaintiff and Appellant.
Crandall, Wade & Lowe, James L. Crandall, Edwin B. Brown, and Janet G. Harris for Defendants and Respondents.
OPINION
IKOLA, J.
Plaintiff Arpi Evans appeals from an order granting a motion to strike her defamation cause of action against defendants Cameron Grenier and Pierre Grenier pursuant to the anti-SLAPP statute. (See Code Civ. Proc., § 425.16.) We conclude the defamation cause of action arose from defendants’ protected activity of enlisting support from neighbors to contest a temporary conditional use permit issued to plaintiff. We further conclude plaintiff failed to show a probability of prevailing on the defamation claim, as no admissible evidence showed defendants made the allegedly defamatory remark. We affirm.
All further statutory references are to the Code of Civil Procedure unless otherwise stated.
FACTS
Plaintiff alleged the following facts in her complaint. Plaintiff operates a catering and event-hosting business at The Forster Mansion, a historic building in San Juan Capistrano (the City). Defendants live next door. Defendants “have engaged in a systematic campaign aimed at adversely affecting” plaintiff’s event-hosting business, including dissuading plaintiff’s clients and potential clients from dealing with plaintiff, harassing guests at plaintiff’s events, and entering plaintiff’s property. Plaintiff alleged causes of action for trespass, nuisance, interference with prospective economic advantage, and harassment.
Plaintiff also asserted a cause of action for defamation. She alleged “defendants published, either directly or by implication, false information that The Forster Mansion held and allowed parties where the participants removed all their clothes.”
Defendants filed an anti-SLAPP motion to strike the complaint. Defendants contended plaintiff’s causes of action arose from their free speech and petitioning activity - namely, their efforts to oppose the City’s issuance of a conditional use permit to plaintiff. Defendants asserted they and residents of a nearby senior living facility, The Seasons, had lodged various complaints with the City and local law enforcement since 2008 about plaintiff’s parties at The Forster Mansion. Plaintiff applied to the City for a conditional use permit, whereupon defendants “enlist[ed] neighbors... to actively speak out against [plaintiff’s] proposed [conditional use permit].” The City held several public hearings throughout 2009 on plaintiff’s application and finally granted her a temporary conditional use permit on August 3, 2009. Defendants filed supporting declarations, but they are not in the record on appeal.
With their opposition, plaintiff filed a declaration from Maryanne Charis, who owns The Forster Mansion (the building itself, not the catering business). Charis stated she spoke with residents of The Seasons “in preparation for” one of plaintiff’s upcoming events at The Forster Mansion. The residents told Charis they were concerned “about previous events at the Forster Mansion at which guests had been naked on the premises.” The residents told Charis that one of the defendants, Cameron Grenier, told them about the nudity.
Cameron Grenier submitted a declaration in reply. She denied telling anyone at The Seasons, or anyone at all, she had seen nude people at The Forster Mansion.
The court granted the anti-SLAPP motion as to the defamation cause of action. It found, “This claim relates to protected petitioning activity and plaintiff did not carry her burden of presenting admissible evidence to support her claim of defamation.” The court sustained hearsay objections to Charis’s statements about what The Seasons residents told her they had been told by Cameron Grenier. It denied the anti-SLAPP motion as to the other causes of action. Only plaintiff appeals.
DISCUSSION
The order granting defendants’ anti-SLAPP motion as to the defamation cause of action is directly appealable and subject to our independent review. (§ 425.16, subd. (i); Flatley v. Mauro (2006) 39 Cal.4th 299, 325.)
The anti-SLAPP statute “‘is designed to protect citizens in the exercise of their First Amendment constitutional rights of free speech and petition.’” (Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 273.) It 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 Constitution or California Constitution in connection with a public issue shall be subject to a special motion to strike....” (§ 425.16, subd. (b)(1).)
To prevail on their anti-SLAPP motion, defendants bear the initial burden of establishing the defamation cause of action arises from their protected activity. “[T]he statutory phrase ‘cause of action... arising from’ means simply that the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech.” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) To meet this burden, defendants must show the conduct underlying the cause of action “‘fits one of the categories spelled out in section 425.16, subdivision (e).’” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier).) These categories include “any... oral statement... made in connection with an issue under consideration or review by a legislative, executive, or judicial body....” (§ 425.16, subd. (e)(2).) The court determines whether the underlying conduct fits a protected category by examining the pleadings and any affidavits supporting or opposing the motion. (§ 425.16, subd. (b)(2).)
Section 425.16, subdivision (e), 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; (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.”
If defendants make such a showing, the burden shifts to plaintiff to “establish[] that there is a probability that [she] will prevail on the claim.” (§ 425.16, subd. (b)(1).) Plaintiff must show “‘“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.”’” (Navellier, supra, 29 Cal.4th at pp. 88-89.) “In assessing the probability of prevailing, a court looks to the evidence that would be presented at trial, similar to reviewing a motion for summary judgment; a plaintiff cannot simply rely on its pleadings, even if verified, but must adduce competent, admissible evidence.” (Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 613-614 (Roberts).) We “[a]ccept[] all admissible evidence [from plaintiff] as true and indulg[e] in every reasonable inference to be drawn from that evidence.” (Nagel v. Twin Laboratories, Inc. (2003) 109 Cal.App.4th 39, 52.)
The court found the defamation cause of action was based on protected speech. We are bound by “three fundamental principles of appellate review: (1) a judgment is presumed correct; (2) all intendments and presumptions are indulged in favor of correctness; and (3) the appellant bears the burden of providing an adequate record affirmatively proving error.” (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58 (Fladeboe).) Plaintiff failed to include all of defendants’ declarations in the record on appeal - declarations filed with their reply memorandum on the motion are in the record, but the declarations filed with the opening motion are missing. We lack an adequate record of the evidence upon which the court based its decision. We will therefore presume the missing declarations supported the court’s finding the alleged defamatory statement “relates to protected petitioning activity.”
Besides, what little record we do have sufficiently shows the alleged statement was “made in connection with an issue under consideration or review by a legislative, executive, or judicial body....” (§ 425.16, subd. (e)(2).) According to plaintiff’s complaint and the Charis declaration, Cameron Grenier allegedly told a resident of The Seasons sometime before August 1, 2009, that there were nude parties at The Forster Mansion. The record contains a declaration from defendants’ counsel, to which plaintiff did not object. That declaration and its attachments generally support defendants’ contentions they spoke to residents of The Seasons to enlist support for their opposition to plaintiff’s conditional use permit application - which plaintiff filed in November 2008, was the subject of multiple public hearings throughout 2009, and which was still pending when Charis was told about the allegedly defamatory remark sometime before August 1, 2009. From this, the court reasonably could have concluded Cameron Grenier made the allegedly defamatory statement, if at all, in connection with plaintiff’s then-pending conditional use permit application with the City.
Plaintiff unpersuasively invokes a second allegedly defamatory statement - The Seasons resident’s republication of Cameron Grenier’s claim to Maryanne Charis. Plaintiff asserts each act of republication may support a separate cause of action. But the complaint sets forth only one defamation cause of action, based solely on Cameron Grenier’s initial statement.
The record also shows defendants spoke to The Seasons’ residents after August 3, 2009, when the City issued a temporary conditional use permit.
In any event, plaintiff concedes defendants “established that they had engaged in protected activity - complaints and petitions to city officials about loud music and unlicensed alcohol sales at [plaintiff’s] events, and soliciting neighborhood support for their petitions.” Plaintiff’s only response is to note defendants’ “petitions and complaints to the city concerned only noise, unlicensed alcohol sales, and unpermitted events; nudity was not a concern expressed or suggested by anyone in connection with the official proceedings.” To be sure, “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.” (Paul v. Friedman (2002) 95 Cal.App.4th 853, 867, italics added [defendant’s harassment of plaintiff lacked reasonable connection to pending securities fraud arbitration].) But an issue was under official review - i.e., whether the City should allow plaintiff to host parties at The Forster Mansion. And a sufficient connection exists between that issue and the alleged defamatory remark. Cameron Grenier’s alleged statement to The Seasons’ residents about nude parties at the Forster Mansion is reasonably connected to the City’s consideration of plaintiff’s application for a conditional use permit to host parties there.
Because defendants satisfied their initial burden, plaintiff is obligated to show “a probability that [she] will prevail on the” defamation cause of action. (§ 425.16, subd. (b)(1); Navellier, supra, 29 Cal.4th at pp. 88-89.) Plaintiff fails to do so for two reasons. First, she offered no “competent, admissible evidence” Cameron Grenier actually made the alleged statement. (Roberts, supra, 105 Cal.App.4th at pp. 613-614.) In her declaration, Charis states residents of The Seasons told her that Cameron Grenier told them about the nude parties. What the residents told Charis is an out of court statement offered for the truth of the matter asserted - that Cameron Grenier did make the allegedly defamatory remark. The court correctly excluded those portions of the Charis declaration as hearsay. (See Evid. Code, § 1200.) Second, she points to no admissible evidence showing the alleged statement is false. (See Civ. Code, §§ 44, 46 [defamation by slander requires false oral statement].) Charis states in her declaration she “had attended most, if not all of the events at the facility in recent years, and nobody had ever been unclothed in my presence.” But the record on appeal lacks defendants’ declarations, as noted above, as well as the declarations that plaintiff filed with her opposition. In the absence of a complete record showing otherwise, we must assume defendants proved there were in fact nude parties at The Forster Mansion. (See Fladeboe, supra, 150 Cal.App.4th at p. 58.)
DISPOSITION
The order is affirmed. Defendants shall recover their costs on appeal.
WE CONCUR: ARONSON, ACTING P. J., FYBEL, J.