Opinion
A101240.
11-7-2003
GAYLE HART et al, Plaintiffs and Respondents, v. NIAMBI LINCOLN, Defendant and Appellant.
I. INTRODUCTION
This is an appeal from an order of the superior court denying defendant and appellants special motion to strike brought under the anti-SLAPP statute, Code of Civil Procedure section 425.16 (section 425.16). The court held the statements at issue, which were being attacked as defamatory in plaintiffs and respondents complaints, did not involve an issue of public interest and, additionally, those parties had shown a reasonable probability of prevailing on the merits. We need reach only the first issue and, based on the clear lack of any public interest in the underlying dispute, affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
All three of the parties hereto, plaintiffs and respondents Gayle Hart and William Vines (hereafter collectively respondents) and defendant and appellant Niambi Lincoln (hereafter appellant), are members of the 350-member St. John Missionary Baptist Church in East Palo Alto. Probably because this church seems to have been split into factions——respondents in one group and appellant and a man named Glen Miller in another——the parties recitals of what happened and why are more than a little different.[]
A fact which makes regrettable the statement of facts contained in appellants opening brief (she filed no reply brief). It recites only her version of the facts.
Appellant was, at least according to her, financial secretary of the church at the time of the events in question and, as such (again according to her), "responsible for monitoring and reconciling the Church finances." Whatever her role and responsibilities, it is undisputed that, at a March 5, 2001, business meeting of the church congregation, appellant verbally reported to the congregation that Vines had arranged to have a cashiers check in the amount of $4,500 sent to Hart and that this action was unauthorized and improper. Appellants position was that this report was the result of her earlier determination that there had apparently been an "improper and unauthorized" transaction resulting in the issuance of the $4,500 cashiers check and its transmission to "an unknown Post Office Box," and her subsequent investigation into that matter. She further declared she had been unable to get satisfactory answers regarding the matter from respondents before her March 5, 2001, presentation to the congregation and, thereafter, the matter was referred to the San Mateo County District Attorneys Office, who filed a complaint but thereafter dismissed it.
Respondents version of the facts was that (1) appellants public airing of the $4,500 cashiers check matter was a by-product of factionalism that had rent the church, (2) the $4,500 was owed to Hart as a result of her not being paid for three months of her $1,500-per-month employment by the church, (3) appellant never, prior to the March 5 meeting, asked either of them for an explanation of the $4,500 expenditure, (4) an ally of appellant, one Glen Miller, had gotten a temporary restraining order against Vines, accusing the latter of harassment, (5) appellant had testified on Millers side in the hearing for a preliminary injunction, but the court denied such an injunction, (6) although the San Mateo County District Attorney had, at the alleged behest of appellant, issued a criminal complaint against Hart, that complaint was later dismissed for "insufficient evidence" by the district attorney on the eve of trial, and (7) Miller and appellant may themselves have been up to no good because they caused a church of exactly the same name to be incorporated on February 21, 2001, and gave as its address Millers home address.
In any event, in March 2002 respondents filed separate, but substantially similar, defamation complaints against both appellant and the church based on appellants March 5, 2001, statements. The church itself was never served, and the action proceeded against appellant alone.
Appellant demurred to both of the original complaints, but no ruling was made on those demurrers as respondents voluntarily filed first amended complaints in May 2002. Appellant demurred to these complaints also and, additionally, filed a motion to strike under section 425.16. Respondents filed oppositions to those demurrers and motions to strike, to which appellant replied. At a hearing held on August 6, 2002, (1) the two cases were ordered consolidated, (2) appellants demurrers were sustained but respondents given leave to amend to allege malice on the part of appellant, and (3) the motions to strike were declared moot in view of the grant of leave to amend.
Respondents filed their second amended complaints on September 5, 2002, each containing essentially the same causes of action. Those complaints alleged that appellant knew her March 5, 2001, statements were false, and that she had made them with the purposes of both hurting respondents reputations and facilitating her own diversion of church funds to a separate entity she had set up with the same name as the church using her own home address.[] Finally, the complaint alleged that appellant had caused a criminal complaint to be filed against Hart by the San Mateo County District Attorneys Office, a complaint which was later dismissed with a concession by that office of no culpability on the part of Hart. (CT 288-301.)
Respondents pleadings are inconsistent regarding which home address was used for the new and different church; one alleges that it was Millers home address and another that it was appellants.
On October 4, 2002, appellant again demurred to these complaints and filed motions to strike under section 425.16. Again, respondents filed oppositions, and appellant replies, to those oppositions. The demurrers and motions to strike came on for hearing before the superior court on November 1, 2002. After brief oral argument, the demurrers were overruled and the motions to strike denied. No written orders were ever entered by the court on the motions to strike, apparently because (1) respondents draft order was never approved by appellants counsel pursuant to California Rules of Court, rule 391, and (2) neither party submitted a draft order to the superior court.[] Respondents did, however, file a notice of entry of orders on November 7, 2002, and appellant a notice of appeal from the orders on December 30, 2002.
The lack of a formal written order is, frankly, distressing. We should, by all rights, be reviewing a written order which, to the maximum extent possible, indicates the trial courts reasoning. Supplying such was and is the responsibility of appellants counsel, a responsibility that was ignored. However, the record before us does contain minute orders reciting the trial courts rulings on the motions to strike, a reporters transcript of the oral argument which reveals some, if not all, of the courts reasoning and, interestingly, written objections filed by appellants counsel to respondents draft order, objections that further confirm the basis for the trial courts decision.
III. DISCUSSION
"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, 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. [Citation.]" (Commonwealth Energy Corp. v. Investor Data Exchange, Inc. (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. 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, supra, 105 Cal.App.4th 913, no fewer 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 (Du Charme), Weinberg v. Feisel (2003) 110 Cal.App.4th 1122 (Weinberg), 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 apparently concluded this was such a case.[] To evaluate whether it was correct in that judgment involves, of necessity, a bit of line-drawing, i.e., some definitions of what does and what does not constitute a public issue.
As noted in the preceding footnote, although we lack a formal written and signed order by the trial court, both the trial courts inquiries of counsel at the hearing on the motions to strike and a pleading filed by appellants counsel after that hearing confirm that the public interest issue was at least one of the bases, if not the principal one, for that courts denial of the motions to strike.
Several of the recent authorities are helpful in this line-drawing process. Thus, in Commonwealth Energy, supra, 110 Cal.App.4th 26, Presiding Justice Sills, writing for a panel of Division Three of the Fourth District, discussed our Rivero decision (Rivero, supra, 105 Cal.App.4th 913) and the cases we relied upon there. He then summarized the "three general categories of cases fitting the [public interest] prong" as follows: "(1) The subject of the statement or activity precipitating the claim was a person or entity in the public eye. [Citations.] [¶] (2) The statement or activity precipitating the claim involved conduct that could affect large numbers of people beyond the direct participants. [Citations.] [¶] (3) The statement or activity precipitating the claim involved a topic of widespread, public interest." (Commonwealth Energy, at p. 33.) We generally agree with this categorization.
Under no stretch of the imagination did the underlying dispute here fall within categories (1) and (3) of Commonwealth Energy, supra, 110 Cal.App.4th at page 33. There remains only category (2), i.e., whether the conduct in question "could affect large numbers of people beyond the direct participants." (Ibid.) The leading case defining that category is Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468 (Damon), a decision relied upon by us in both Rivero, supra, 105 Cal.App.4th 93 and Du Charme, supra, 110 Cal.App.4th 107, and by Justice Sills in Commonwealth Energy. In Damon, Justice Haller, writing for a panel of Division One of the Fourth District, explained: "The 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." (Damon, 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.)[]
As this court pointed out in Du Charme, supra, 110 Cal.App.4th 107, another "anomalous" decision of the same court that decided Damon, supra, 85 Cal.App.4th 468 was Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, which stretched matters quite a bit farther than did the Damon court. (See Du Charme, at p. 118, fn. 1.) But even if the Dowling decision can be said to support appellants argument here, as we strongly hinted in Du Charme, we are not inclined to embrace that decision. Put bluntly, we think the underlying dispute in Dowling 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, at p. 479.) In our view, the underlying dispute in Dowling did not meet that test.
The underlying dispute here does not come close to qualifying under this test. That dispute was, to recapitulate, between two pairs of members of a 350-member church in East Palo Alto. One pair was appellant Lincoln and her ally, Glen Miller, both active church members. The other was composed of apparently equally active church members, respondents Hart and Vines. Quite obviously, from the record before us, the disagreements between them had been ongoing for some time——indeed, they continued for some time afterwards, too.[] Among other things, those disagreements implicated such interesting, but very nonpublic, issues such as (1) whether Hart was an employee or volunteer within the church, (2) whether appellant was the financial secretary of the church on March 5, 2001, or just a member of a committee charged with monitoring church finances, (3) whether Hart was owed $4,500 for back pay, (5) if she was, the proper way to handle transmission of that sum, and (6) whether appellant and Miller were up to no good by chartering another church with the same name but with a mailing address identical with either Millers or appellants home address.
That continuation is represented by (1) appellants subsequent referral of the $4,500 cashiers check issue to the district attorneys office, and (2) the temporary restraining order secured by Miller, with the assistance of appellants testimony, against Vines to stop the latters alleged harassment.
Further, the communication at issue here, appellants comments to the congregations business meeting of March 5, 2001, implicated only a couple of those issues. Her communication was entirely verbal, and the record provided us does not reflect how many of the 350 members were even present for that business meeting. In light of all this, appellants contention that the underlying dispute implicated issues of public interest under section 425.16 is unconvincing, particularly in light of the recent authorities just noted.
Appellant argues the matter became one of public interest as and when the issue of the propriety of the $4,500 cashiers check came to the attention of the San Mateo County District Attorneys Office and a complaint against Hart was filed by that office. There are two answers to this. First of all, the referral of the matter to the district attorney occurred after, not before or simultaneously with, the March 5, 2001, charges against Hart. Thus, as of that date, there was nothing public about the charges against Hart. But second, and as our colleagues in the Third District pointed out most recently in a case quite similar factually to the one before us, the fact that a defamatory comment charges conduct that may be criminal does not automatically transform the underlying controversy into one of public interest.
In Weinberg, supra, 110 Cal.App.4th 1122, both the plaintiff and defendant were avid token collectors and members of an association of like-minded folk. That association publishes a newsletter and, after a 1998 or 1999 token show in Oakland, during which defendant showed his collection to plaintiff, the former both published ads in that newsletter and corresponded with other collectors accusing plaintiff of having stolen a specific token from defendants collection. Plaintiff sued for libel, slander and intentional infliction of emotional distress, only to be met, predictably, with a motion under section 425.16. The trial court denied the motion, and the Court of Appeal affirmed, stating, "Defendant has failed to demonstrate that his dispute with plaintiff was anything other than a private dispute between private parties. The fact that defendant allegedly was able to vilify plaintiff in the eyes of at least some people establishes only that he was at least partially successful in his campaign of vilification; it does not establish that he was acting on a matter of public interest." (Id. at p. 1134.)
Then-Presiding Justice Scotland, writing for a unanimous panel of the Third District, addressed the precise issue appellant raises in her brief to us: "Defendant contends that his statements accused plaintiff of criminal activity and that criminal activity is always a matter of public interest." (Weinberg, supra, 110 Cal.App.4th at p. 1134.) The court rejected this proposition, noting first of all that the "defendant did not report his suspicions to appropriate prosecutorial authorities, criminal charges are not pending against plaintiff, and plaintiff is not involved in the criminal justice system." (Ibid.) The court concluded on this point: "Simply stated, causes of action arising out of false allegations of criminal conduct, made under circumstances like those alleged in this case, are not subject to the anti-SLAPP statute. Otherwise, wrongful accusations of criminal conduct, which are among the most clear and egregious types of defamatory statements, automatically would be accorded the most stringent protections provided by law, without regard to the circumstances in which they were made—a result that would be inconsistent with the purpose of the anti-SLAPP statute and would unduly undermine the protection accorded by paragraph 1 of Civil Code section 46, which includes as slander any false and unprivileged communication charging a person with a crime, and the California rule that false accusations of crime are libel per se." (Id. at p. 1136.)
Here the facts are slightly, but not materially, different: sometime after appellants statements of March 5, 2001, she or one of her allies reported the $4,500 cashiers check matter to the district attorneys office, who then filed a criminal complaint against Hart. But sometime before trial, the district attorney concluded there was insufficient evidence to press those charges, and there the matter ended. Thus, although criminal charges were, unlike in Weinberg, briefly entertained in this case, those charges were (1) not a subject of the allegedly defamatory comments, and (2) in any event, soon dismissed. As a result, the principle enunciated in Weinberg, supra, 110 Cal.App.4th at page 595 is fully applicable here.
IV. DISPOSITION
The order appealed from is affirmed.
We concur: Lambden, J. and Ruvolo, J.