Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. MSC06-00792
OPINION
Marchiano, P.J.
Cross-defendant Leroy Moyers appeals from the order denying his anti-SLAPP motion (Code Civ. Proc., § 425.16) to strike the cross-complaint of Joseph, Kathleen, and Charles Grosser. The Grossers were sued by Kevin Kimes, whose pet cat Pumkin was shot and wounded with a pellet gun. Kimes blamed the Grossers for the shooting, and contacted Moyers, a representative of an organization called “Voices for Pets,” which “responds to violence to animals.” Moyers prepared flyers offering a reward from Voices for Pets for information leading to the conviction of the responsible party. The Grossers cross-complained against Moyers for defamation and intentional infliction of emotional distress arising from publication of the flyers, which they contend implied that they were responsible for the shooting. The court denied the motion to strike on the ground that the Grossers’ causes of action did not arise from conduct protected by the anti-SLAPP law. We agree with that determination, and affirm the order.
All further statutory references are to the Code of Civil Procedure.
I. BACKGROUND
The Grossers and Kimes live next door in the Laurel Wood Estates neighborhood of Brentwood. Charles Grosser, Joseph and Kathleen Grosser’s son, was 18 years old and a student at Los Medanos Community College in Pittsburg at the time of the incident with Pumkin. Kimes and others posted the flyers in question in Laurel Wood Estates and at Los Medanos Community College. The flyers have a Voices for Pets logo at the top, and contact information for Voices for Pets, an e-mail address, and a picture of Pumkin at the bottom. The flyers posted in the neighborhood and at the school were identical except that the name “Charlie” (which we show in this opinion in brackets) was added to the flyers put up at the school. The flyers read as follows:
“$3,000 Reward
“Warning to People with Children and Pets!
“On Friday, October 28, 2005, Pumkin, a very friendly and much loved family cat was shot by a high-powered pellet gun while sitting on the backyard fence of the [Charlie] Grosser residence, 1610 Dawnview Drive, in the Laurel Wood Estates neighborhood in Brentwood.
“A pellet gun fires a piece of lead at 1,000 feet per second. If the pellet does not strike bone, it can pass right through a pet, child or an adult. The pellet that somebody fired into Pumkin entered through his side and lodged in his spine. In the attempt to save Pumkin’s life he was taken to the veterinarian and underwent emergency surgery. Pumkin’s life was ultimately saved; however, he is now paralyzed from the waist down. Pumkin remains under the care of a veterinarian, and at the present date the medical bills incurred are in the thousands. This is a direct result of the person who decided to take aim and pull the trigger that day.
“People who use these weapons to kill neighborhood pets are cowards, these individuals are into having power and dominance over defenseless victims. This is the same mindset of people who victimize children, women, and the elderly.
“According to FBI research, 85% of serial killers start off by killing neighborhood pets. There is a person living among us who shoots animals and is not only a threat to pets, but also to you and your entire family.
“Cruelty to an animal is a crime that is punishable by a fine of up to $20,000 and 3 years in prison.
“Voices for Pets is offering a $3,000 reward for information leading to the arrest and conviction of the person responsible for this cowardly act.”
We have not attempted to reproduce the different font sizes and types used in the flyers, and have not shown underlining in the text.
In his declaration in opposition to the motion to strike, Charles Grosser said that he learned of the flyers at the school when other students approached him and asked why he had shot a cat named “Pumkin” with a high-powered pellet gun. He was told that “there were posters posted all over the college campus telling everyone that I harmed ‘Pumkin.’ ” Charles was “horrified” when he read the flyers. He had assured Kimes that he did not shoot Pumkin and did not know how Pumkin was injured. At no time did Moyers or anyone else from Voices for Pets try to contact him to find out what he knew about Pumkin’s injuries. He had never owned a pellet gun, and was at school when the shooting occurred. After the flyers were posted, students made fun of him and “made statements about [him] harming defenseless animals, children, women, and even the elderly.” He said that, “[d]uring the week of November 2, 2005, there were more posters placed all around our neighborhood inferring (sic) to the world that my family and I were animal haters and criminals.” He stopped jogging in the neighborhood for fear that he would be confronted about his alleged cruelty to animals. He got an upset stomach, and could not eat or sleep.
Kathleen Grosser declared in opposition to the motion that she had assured Kimes that none of the Grossers had shot Pumkin, knew how Pumkin was injured, or were home when the shooting occurred. No one in the family had been contacted by Moyers or anyone else at Voices for Pets about the incident. Neighbors who saw the flyers, and patrons of the local business she owned and operated, asked her what happened to Pumkin. The Grossers owned two cats of their own when the incident transpired, and she “was, and continue[d] to be, embarrassed and humiliated to think that the general public could think that we are cruel to animals.”
The cross-complaint alleged that the flyers had been “widely distributed” in the neighborhood and at the school, and that the allegations in the flyers “may have been republished” on the Voices for Pets website.
II. DISCUSSION
Resolving an anti-SLAPP motion is “[a] two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains were taken ‘in furtherance of the [defendant]’s right of petition or free speech under the United States or California Constitution in connection with a public issue,’ as defined in the statute. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. . . .” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) Rulings on these issues are subject to de novo appellate review. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055.)
The trial court determined that the shooting of the cat was not “an issue of public interest” within the meaning of the anti-SLAPP law. (§ 425.16, subd. (e)(3) [protected activity includes “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”]; see also § 425.16, subd. (e)(4) [covering “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 court found that the flyers were not published in the context of an ongoing controversy, dispute, or discussion. (See Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107, 119 (Du Charme) [“where the issue is not of interest to the public at large, but rather to a limited, but definable portion of the public (a private group, organization, or community), the constitutionally protected activity must, at a minimum, occur in the context of an ongoing controversy, dispute or discussion”].) The court found that this case was comparable to Weinberg v. Feisel (2003) 110 Cal.App.4th 1122 (Weinberg), where no issue of public interest was present (id. at p. 1127). We independently concur in all of these conclusions.
The court in Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 924 (Rivero), noted that “the precise boundaries of a public issue” had not been defined for purposes of the anti-SLAPP statute, but that public issues had been found in cases where the statements at issue concerned: “a person or entity in the public eye,” “conduct that could directly affect a large number of people beyond the direct participants,” or “a topic of widespread, public interest.” The Weinberg court doubted that an “all-encompassing” definition of the term “issue of public interest” could be given, but observed that “a matter of public interest should be something of concern to a substantial number of people,” and that “[a] person cannot turn otherwise private information into a matter of public interest simply by communicating it to a large number of people.” (Weinberg, supra, 110 Cal.App.4th at pp. 1132-1133.)
While the shooting of the cat and the identity of the assailant were matters of concern to Kimes and presumably to a small circle of other people that included family, friends, and immediate neighbors, there is no evidence that the matters were of widespread public interest or of concern to a substantial number of people before they were publicized in the flyers. Since only a small number of people were affected, a central criterion for an issue of public interest is absent in this case. As the trial court recognized, the situation here is similar to that in Weinberg, where the crime in question—theft of a valuable collector’s item—was of interest only to “a relatively small group of fellow collectors.” (Weinberg, supra, 110 Cal.App.4th at p. 1127.) Weinberg persuasively concluded that allegations of criminal conduct do not automatically turn “what in effect was a private matter” into an issue of public interest (id. at p. 1127), and that a defendant cannot turn a private matter into a public one simply by publicizing it (id. at p. 1133).
The Du Charme case held that where the First Amendment activity in question “is connected to an issue of interest to only a limited but definable portion of the public, a narrow segment of society,” the activity must relate to 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 pp. 118, 119.) Even if the circle of people concerned with the incident in this case could qualify as a “definable” “private . . . community” within the reasoning of Du Charme, the requirement of an ongoing controversy, dispute or discussion would not be satisfied. (Compare, e.g., Terry v. Davis Community Church (2005) 131 Cal.App.4th 1534, 1549-1551 (Terry) [allegations that church youth group leaders had inappropriate sexual contact with minor female gave rise to ongoing, legitimate discussions among church members about whether other children had similar contact and about ways to protect children in the congregation].)
Amicus curiae The Humane Society of the United States (Society) urges us to look beyond the “immediate subject” of the speech in this case and deem it connected to the “larger public issue[s]” of “animal welfare and cruelty.” However, we agree with the decisions that have focused on the “specific nature of the speech” in question, “rather than the generalities that might be abstracted from it.” (Commonwealth Energy Corp. v. Investor Data Exchange, Inc. (2003) 110 Cal.App.4th 26, 34 [suit against telemarketing firm that had touted its services as a way of avoiding investment scams did not involve a public issue because the speech in question was a sales pitch to a small number of people for a particular service, not about investment scams generally]; see also Consumer Justice Center v. Trimedica International, Inc. (2003) 107 Cal.App.4th 595, 601 (Consumer Justice) [herbal supplement maker sued for fraud and false advertising argued that herbal dietary supplements were a matter of public interest, but the speech in question was about “the specific properties and efficacy of a particular product,” not “herbal supplements in general”; Rivero, supra, 105 Cal.App.4th at pp. 919, 925 [allegedly false statements about janitorial supervisor did not involve broad topic of “disrespectful supervision”].) As in these cases, the speech here focused on a specific matter—the injury to a particular pet—not on a wider topic of general interest. “If we were to accept [the] argument that we should examine the nature of the speech in terms of generalities instead of specifics, then nearly any claim could be sufficiently abstracted to fall within the anti-SLAPP statute.” (Consumer Justice, supra, 107 Cal.App.4th at p. 601.)
Moyers and the Society argue that the speech here was of public interest because it concerned the safety of humans and animals, but all of the cases cited in support of that argument are distinguishable. Whereas the First Amendment activity in City of Los Angeles v. Animal Defense League (2006) 135 Cal.App.4th 606, 620, addressed alleged mistreatment of animals at taxpayer supported, city-run animal shelters, the speech in this case addressed a single isolated incident involving one animal on a backyard fence. The allegations of sexual impropriety by church group leaders in Terry, supra, 131 Cal.App.4th at pp. 1549-1551, were, as we have noted, made in the context of an ongoing discussion within the church about protection of children. The flyers here did not give rise to an ongoing discussion of safety issues within any definable community; insofar as it appears from the record, they only prompted questioning of the Grossers about the shooting. “The broad topic of the [magazine] article and [television] program” in M. G. v. Time Warner, Inc. (2001) 89 Cal.App.4th 623, 629, “was not whether a particular child was molested, but rather the general topic of child molestation in youth sports.” In contrast, the flyers here were primarily focused on the identity of the assailant of a particular pet. The speech in Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1408, 1420, alleged ongoing harassment of the residents of a townhouse, which the court thought “arguably involved public issues of nuisance and safety.” The case at bench, as we have said, did not involve a pattern of conduct; if it did, we would be inclined to take a different view of it. Allegations of spousal abuse were of public interest in Sipple v. Foundation for Nat. Progress (1999) 71 Cal.App.4th 226, 239, because “the person accused of the abuse [was] a nationally known figure identified with morality campaigns for national leaders and candidates for the office of President of the United States.” The parties here are not similarly in the public eye. No case holds that all speech implicating human or animal safety is invariably of public interest, no matter how attenuated the implication, and no such broad rule can be derived from the precedents.
There is no bright line between issues of public and private interest; the distinction turns on the facts of each particular case. We have here an isolated incident that, apart from the publicity the flyers gave it, would have been of interest to only a few people who were affected by the cruel act. No ongoing conduct, controversy, dispute, or discussion was involved. For these and the other reasons identified above, the issue in this case falls on the private side of the line. In so concluding, we do not minimize the gravity of this deplorable incident to those it concerned.
III. DISPOSITION
The order denying the anti-SLAPP motion is affirmed.
We concur: Swager, J., Margulies, J.