Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. CV158484
Premo, J.
Plaintiff Matthew C. Fullenwider sued defendant Jessica Brandi Lifland for invasion of privacy. The lawsuit was based upon a photograph of plaintiff that defendant allegedly caused to be published in a magazine. Defendant filed a special motion to strike under Code of Civil Procedure section 425.16, commonly known as the anti-SLAPP statute. The trial court granted the motion, dismissed the action, and awarded defendant her attorney fees of $12,764.43. Plaintiff appeals. We shall affirm.
Further unspecified section references are to the Code of Civil Procedure.
I. Legal Framework
In order to put the procedural discussion in context, we begin with a summary of the legal framework for an anti-SLAPP motion. The purpose of the anti-SLAPP statute “is to encourage participation in matters of public significance by allowing a court to promptly dismiss unmeritorious actions or claims that are brought to chill another’s valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. [Citation.] In furtherance of this purpose, the anti-SLAPP statute is to be construed broadly.” (Padres L.P. v. Henderson (2003) 114 Cal.App.4th 495, 508.)
“On a special motion to strike under the anti-SLAPP statute, ‘[t]he moving party bears the initial burden of establishing a prima facie showing the plaintiff’s cause of action arises from the defendant’s free speech or petition activity.’ [Citations.] The moving SLAPP defendant may meet this burden by showing the act which forms the basis for the plaintiff’s cause of action was an act that falls within one of the four categories of conduct described in subdivision (e) of section 425.16.” (Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1417.) The category relevant here is that described in section 425.16, subdivision (e)(3): “[A]ny 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.” If the defendant establishes a prima facie case, then the burden shifts to the plaintiff to make a prima facie showing of facts, which, if proved, would support a judgment in the plaintiff’s favor. (Dowling v. Zimmerman, supra, at p. 1417.)
Section 425.17, subdivision (c), exempts from the operation of section 425.16, a cause of action against a defendant who is “primarily engaged in the business of selling or leasing goods or services” provided specified circumstances exist. (Sunset Millennium Associates, LLC v. LHO Grafton Hotel, L.P. (2006) 146 Cal.App.4th 300, 313.)
“In reviewing an anti-SLAPP motion, a court must consider the pleadings and the evidence submitted by the parties (§ 425.16, subd. (b)(2)); however, it cannot weigh the evidence, but instead must simply determine whether the respective party’s evidence is sufficient to meet its burden of proof. [Citation.] On appeal, we independently review the trial court’s ruling on the motion to strike.” (Padres L.P. v. Henderson, supra,114 Cal.App.4th at p. 509.)
II. Factual and Procedural Background
Plaintiff’s first amended complaint alleged that he visited the Shadowbrook restaurant in Capitola on October 28, 2006. While plaintiff was descending from the parking lot to the dining area in the restaurant cable car, a male photographer stepped out onto the “cable car tracks,” aimed his camera at plaintiff, “and took a picture.” Eight months later, Viamagazine featured an article about Capitola “written by Nino Padova, with pictures by Defendant Lifland.” Although the pleading does not say so specifically, the implication is that the photograph that was taken of plaintiff on October 28, 2006, is one of the photographs illustrating the article. The pleading alleges that plaintiff had not given his consent “for the picture or . . . the use thereof.” Plaintiff sued defendant on causes of action for physical invasion of privacy (Civ. Code, § 1708.8, subd. (a)), constructive invasion of privacy (Id., subd. (b)), and appropriation of plaintiff’s likeness for commercial purposes (Id., § 3344, subd. (a)).
Defendant responded to the lawsuit with an anti-SLAPP motion, arguing that the photograph was a “statement or writing made in a place open to the public . . . in connection with an issue of public interest,” within the meaning of section 425.16, subdivision (e)(3) and that plaintiff could not demonstrate a probability of prevailing on the claim. Defendant argued that the article was “a journalistic description,” highlighting places readers might choose to patronize; it was not an advertisement. Defendant also submitted evidence to show that the subject photograph could not have been the photograph allegedly taken of plaintiff in October 2006. Defendant admitted having taken the photograph but explained that she had done so in March 2007.
In his opposition to the motion, plaintiff, who has appeared in propria persona throughout these proceedings, argued that section 425.16 did not apply to the photograph and, in any event, that section 425.17 exempted his claim from application of the anti-SLAPP law. In his declaration, plaintiff stated that he was not at the Shadowbrook in March 2007 and that the person who took his photograph was a man who bore no resemblance to defendant.
Defendant’s motion attached a copy of the Via magazine article. In the record, it appears as a black and white photocopy. The subject photograph appears in the lower left hand corner of one page of the four-page article. It shows the downhill end of the Shadowbrook cable car with the cable car track visible above and below, the roofline and windows of a building (presumably the restaurant) to the right, and gardens or vegetation to the left. The caption, which is printed directly on the image, states, “Shadowbrook’s cable car, added in 1958, holds six passengers.” There is a single visible occupant of the cable car facing the camera. The face is partially concealed by the bars on the window of the car.
At the hearing on defendant’s motion, the trial court engaged defendant’s counsel in a thoughtful discussion of whether the anti-SLAPP statute applied to this case. The court found that the photograph qualified as a statement or writing and that the magazine, although not open to the general public, was open to a sufficiently large group that it qualified as a public forum. The trial court further found that section 425.17 did not exempt plaintiff’s lawsuit from application of the anti-SLAPP statute. The court also noted that plaintiff had submitted no evidence pertaining to the probability of his prevailing at trial.
The “sticking point” for the trial court was whether the photograph was a statement of public interest. The court agreed that an article about vacationing in Capitola or even one about the Shadowbrook cable car would be of public interest, “but including plaintiff in the photo would seem to require that both the cable car and the plaintiff be the subject of public interest for this section to apply . . . .” The court stated, “It appears that the defendant has not met the threshold burden of demonstrating that the publication in a magazine of a photo of a private individual constitutes protected activity under the anti-SLAPP statute [§ 425.16, subd. (e)(3)], because the photo does not involve an issue of public interest.” The trial court then engaged defendant’s counsel in a detailed discussion of the point.
Counsel argued that the photograph was similar to pictures of people amassed in events that take place on public streets. Counsel admitted that she had found no cases applying section 425.16 to such photographs. The court mused that, perhaps “the wrong motion was chosen here” but proceeded to further analyze whether the image of plaintiff in the photograph could be considered an issue of public interest. The trial court ultimately concluded, “I’m going to grant this motion because this section shall be construed broadly. I think that the cable car itself is the prominent portion of this photograph, that the small image of the plaintiff is de minimus at best, that it’s even difficult to make out who this person is other than it looks like a male, and for those reasons I am going to grant this and award defendants [sic] attorney’s fees under the provision of the section.”
III. Discussion
Plaintiff makes five or six perfunctory arguments pertaining to whether section 425.16 applies to this lawsuit. None has merit. We address each in the following sections.
A
Plaintiff argues that since the trial court found that defendant had not met the burden of proof, and since defendant could not cite any controlling case law, the trial court should have denied the motion. It is true that the court initially stated that it “appears” that defendant had not met the burden of proof. The part of the burden to which the court was referring was defendant’s burden to show that the statement (the photograph in this case) was a statement pertaining to an issue of public interest. After further argument, the court decided to grant the motion, concluding that since the image of plaintiff was “de minimus” relative to the rest of the photograph, the statement was a statement about the Shadowbrook cable car, not about plaintiff, and as such, it was a statement pertaining to an issue of public interest. In short, the court ultimately concluded the defendant had met her burden of proof. The absence of any case law on point is not determinative. Indeed, it is the duty of the courts “to say what the law is.” (Marbury v. Madison (1803) 5 U.S. (1 Cranch) 137, 177.) If there were cases that held to the contrary, that might affect the result, but the absence of any case on point is a neutral factor.
B
Plaintiff argues that the term “de minimus” is “inappropriate” and provides no legal basis for granting the motion. The argument is unavailing. As we have explained, the trial court used the term “de minimus” as a shorthand way of saying that plaintiff’s face in the photograph was so small and indistinct that the photograph could not be considered a photograph of plaintiff; it was a photograph of the Shadowbrook cable car.
C
Plaintiff next argues that the trial court erred in concluding that Via magazinewas a public forum. According to plaintiff, the actual question was “whether or not the article relates to a public forum” and “[t]he fact that magazines can be a public forum is immaterial.” Again, we disagree. The public forum requirement of section 425.16, subdivision (e)(3) applies to a statement or writing (the photograph) that is “made in a place open to the public or a public forum.” The magazine is the “place” where the writing appeared and, therefore, it is the forum at issue.
Plaintiff also argues that the magazine is not a public forum because it did not involve a “legislative, executive or judicial” proceeding. It is true that the anti-SLAPP statute applies to protect statements made in connection with legislative, executive, or judicial proceedings, but those statements fall under section 425.16, subdivision (e)(1). We are here concerned with section 425.16, subdivision (e)(3), which applies to statements “made in a place open to the public or a public forum . . . .” There is no requirement under this subparagraph that the statement be made where official proceedings take place.
Citing Nygård, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027 (Nygård), plaintiff states, in a one-sentence argument, that “vacation destinations” are not issues of public interest because the subject does not relate to “self-government.” But the Nygård case actually held that “ ‘an issue of public interest’ within the meaning of section 425.16, subdivision (e)(3) is any issue in which the public is interested. In other words, the issue need not be ‘significant’ to be protected by the anti-SLAPP statute--it is enough that it is one in which the public takes an interest.” (Id., at p. 1042.) The “self-government” language upon which plaintiff relies comes from Nygård’sdiscussion of Zhao v. Wong (1996) 48 Cal.App.4th 1114. (Nygård, supra,at p. 1040.) Nygård ultimately rejected the Zhao analysis. (Ibid.)
D
Finally, plaintiff argues that the court erred in concluding that section 425.17 did not exempt the lawsuit from operation of section 425.16. Section 425.17, subdivision (c) provides: “Section 425.16 does not apply to any cause of action brought against a defendant primarily engaged in the business of selling or leasing goods or services, including, but not limited to, insurance, securities, or financial instruments, arising from any statement or conduct by that person if both of the following conditions exist: ¶ (1) The statement or conduct consists of representations of fact about the defendant’s or a business competitor’s business operations, goods, or services, that is made for the purpose of obtaining approval for, promoting, or securing sales or leases of, or commercial transactions in, the person’s goods or services, or the statement or conduct was made in the course of delivering the person’s goods or services. ¶ (2) The intended audience is an actual or potential buyer or customer, or a person likely to repeat the statement to, or otherwise influence, an actual or potential buyer or customer.” In short, section 425.17, subdivision (c), creates an exception to the anti-SLAPP procedures for certain claims against business entities provided that the circumstances described in both subparagraphs (1) and (2) are present. (Sunset Millennium Associates, LLC v. LHO Grafton Hotel, L.P., supra,146 Cal.App.4th at p. 312.)
In the instant case, although defendant was primarily engaged in the business of selling her photojournalistic services, her statement, namely the photograph that appeared in Viamagazine, was not a representation of fact about her services or the services of a business competitor. Accordingly, the trial court did not err in concluding that section 425.17, subdivision (c) did not exempt plaintiff’s claim from the operation of section 425.16.
IV. Disposition
The judgment is affirmed. Defendant shall have her costs on appeal.
WE CONCUR: Rushing, P.J., Elia, J.