From Casetext: Smarter Legal Research

Lee v. Palesano

California Court of Appeals, Fourth District, Second Division
Mar 14, 2008
No. E042243 (Cal. Ct. App. Mar. 14, 2008)

Opinion


DON H. LEE, Plaintiff and Appellant, v. STANLEY PALESANO, Defendant and Respondent. E042243 California Court of Appeal, Fourth District, Second Division March 14, 2008

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

APPEAL from the Superior Court of San Bernardino County. Super. Ct. No. VCV41096 Kurt J. Lewin, Judge. (Retired judge of the L.A. Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)

Don H. Lee, in pro. per., for Plaintiff and Appellant.

Alderson Law Office, James Alderson; Stanley Palesano, in pro. per., for Defendant and Appellant.

OPINION

RAMIREZ P.J.

Plaintiff and appellant Don H. Lee appeals from the trial court’s order granting defendant and respondent Stanley Palesano’s special motion to strike under the anti-SLAPP statute, Code of Civil Procedure section 425.16. For the reasons set forth below, we affirm the trial court’s order.

SLAPP stands for Strategic Lawsuits Against Public Participation.

All section references are to the Code of Civil Procedure unless otherwise indicated.

Statement of Facts

Village Concepts, Inc. (VCI) builds mobile homes and sells them to the public. Many or all of the homes sold by VCI are placed on existing lots in a mobile home park named Indian Village Estates (Indian Village or park), which is owned and operated by a related entity, Indian Village, LLC. Together, the two entities are engaged in ongoing sales of new homes accompanied by new site leases. Palesano worked as a construction laborer on various construction projects at the park. Although the details are in dispute, Palesano, for whatever reason, was no longer working for Indian Village by January 2006.

The first amended complaint alleges that between February 16 and 23, 2006, Palesano entered the gated Indian Village community without permission from the community’s owners. Palesano either passed out or posted copies of a flyer he had written detailing eight separate construction and installation-related defects in the mobile homes and home sites, such as problems with soil compaction, roof lines, underground utilities and gas lines. The flyer is dated February 19, 2006, and begins: “Here is a list of things not done correctly with your homes located at Indian Village Estates . . . .” The flyer also states: “All the items above can be easily corrected, but Mark will not correct these things until you make him. You trusted Mark to build your home in the proper way and it is your money that is tied up in your home.” Palesano included his name, address, and telephone number on the flyer.

The first amended complaint alleges that Palesano “published a ‘flyer’ to residents of the Indian Village Estates Mobilehome Park . . . .”

“Mark” is presumably Mark Weiner, president of VCI.

On March 21, 2006, Lee’s predecessors in interest in this lawsuit—VCI, its president Mark Weiner, and Indian Village, LLC (original plaintiffs)—filed a complaint in the trial court naming Palesano as a defendant and alleging trespass to real property, trespass to chattels, interference in prospective economic advantage, libel and slander, trade libel, and fraud and deceit. The complaint includes a copy of the flyer Palesano handed out or posted, as well as an e-mail from Palesano to Mark Weiner stating that when another employee had let him work on one of the company’s computers “I uploaded everything.” The e-mail suggests Weiner is doing something illegal and concludes: “The states attorney will be there tomarrow [sic] with handcuffs.”

Palesano did not answer the complaint, so the superior court entered a default against him on June 1, 2006. The court set aside the default on July 11, 2006.

Also on July 11, 2006, the original plaintiffs filed a first amended complaint alleging causes of action for trespass to real property, trespass to chattels, interference in prospective economic relationships, and interference in existing contractual relationships. The complaint requested injunctive relief, damages, and attorney fees. On July 10, 2006, the original plaintiffs filed with the superior court a notice that they had assigned all of their interests in these causes of action to Don Lee, an employee. The assignment agreement recited that, because Palesano was unemployed and might seek bankruptcy protection, “it is no longer cost-effective . . . to . . . employ counsel to litigate a case so far from its base of operations when the likelihood of any economic recovery against Defendant PALESANO is so remote.” Lee thereafter pursued this case in the trial court in propria persona.

On August 16, 2006, Palesano filed a demurrer to the first amended complaint. On September 21, 2006, Palesano filed a motion to strike under sections 435 and 436, along with a request for sanctions under section 128.5. On that date, Palesano also filed a special motion to strike under the anti-SLAPP law, section 425.16. Palesano attached as exhibits to the motion his own declaration describing briefly why each of the statements in the flyer was true, along with a number of photographs purporting to support the statements in the flyer, as well as letters from county, state, and federal agencies discussing complaints and inspections regarding problems similar to those described in the flyer. On October 10, 2006, Lee filed his opposition to the special motion to strike, objections to the evidence submitted in support of the motion, and an opposition to the “regular” motion to strike.

Exhibit F is a May 22, 2006, letter to VCI from the state Department of Housing and Community Development, Division of Codes and Standards memorializing an inspection of one of the mobile homes at the park that revealed problems with the roof and exhaust fan vent. Exhibit G is a May 4, 2006, letter to Mark Weiner from the County of San Bernardino Department of Public Health reporting the results of an inspection of unspecified homes in the park that found problems with the construction of the garages that reflected some of the concerns set forth in the flyer. Exhibit H is a May 26, 2006, letter to one of the homeowners from the Federal Department of Housing and Urban Development (HUD) regarding a complaint the owner had made about the roof line where the garage is attached, which was discussed in the flyer.

The hearing on the motions to strike was held on October 23, 2006. After taking the cause under submission, the trial court made its ruling by minute order dated December 1, 2006. The court granted the special motion to strike as to all causes of action except the second cause of action for trespass to chattel, as to which it also overruled the demurrer. The court also overruled each of Lee’s evidentiary objections and awarded Palesano $1,000 in attorney fees. This appeal followed.

Discussion

Lee contends the trial court erred in granting Palesano’s anti-SLAPP motion.

Section 425.16 provides for a special motion to strike an action if the action is brought primarily to chill the valid exercise of First Amendment rights, such as freedom of speech or freedom to petition for redress of grievances. “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 or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1); see Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 307.) Such a motion is commonly referred to as an anti-SLAPP motion.

An anti-SLAPP motion is intended to weed out unsubstantiated causes of action, so that the plaintiff need only “rebut the presumption [of an intent to chill protected activity] by showing a reasonable probability of success on the merits.” (Fox Searchlight Pictures, Inc. v. Paladino, supra, 89 Cal.App.4th at p. 307; accord, Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61.)

The inquiry following an anti-SLAPP motion is two-fold. First, the defendant must show that the pleading “arose from” protected activity, i.e., that the defendant’s acts of which the plaintiff complains were done in furtherance of the defendant’s constitutional rights of petition or free speech in connection with a public issue. (Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 928.) Second, the plaintiff can still defeat the motion by showing that, despite the protected nature of the activity, the plaintiff has a reasonable probability of prevailing on the merits. (Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1087.)

“Upon review of an order granting or denying a motion pursuant to section 425.16, the appellate court independently reviews whether a complaint arises out of the defendant’s exercise of a valid right to free speech and petition, and, if so, whether the plaintiff established a reasonable probability of prevailing on the complaint. [Citations.]” (Drum v. Bleau, Fox & Associates (2003) 107 Cal.App.4th 1009, 1017; see also Tutor-Saliba Corp. v. Herrera (2006) 136 Cal.App.4th 604, 609-610; HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.)

Here, the trial court struck four causes of action from Lee’s complaint under the anti-SLAPP statute: (1) trespass to real property; (2) interference with prospective economic relationships; (3) interference with existing contractual relationships; and (4) injunction based on the trespass theory. Each cause of action stems from Palesano’s entry into the mobile home park and his actions in publishing his flyer to park residents warning them of possible defects in the construction or installation of their mobile homes.

A. Trespass is a Proper Subject of an Anti-SLAPP Motion

First, Lee argues that Palesano was trespassing when he published the flyers and that, because trespass involves physical conduct rather than a form of communication, a cause of action for trespass is never a proper subject of an anti-SLAPP motion. Case law contradicts this assertion. “[W]here a cause of action alleges both protected and unprotected activity, the cause of action will be subject to section 425.16 unless the protected conduct is ‘merely incidental’ to the unprotected conduct.” (Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 103.) Here, the activity to which the original plaintiffs principally object is not the trespass itself, but publication of the flyer and the information it contained. The first amended complaint alleges no damages from the trespass itself, but rather complains of the “substantial damages to [the original plaintiffs’] reputation, their present and future economic opportunities, and their present and future contractual relationships with the homeowner residents of the Indian Village Estates Mobilehome Park.” Neither can we discern any damage to the original plaintiffs from the trespass, other than that resulting from the dissemination of the information. Thus, any trespass, if Palesano did indeed trespass, was merely incidental to his actions in publishing the flyer.

The original plaintiffs alleged in the first amended complaint that Palesano “possessed no authority whatsoever to enter the . . . property” without their consent. Palesano alleges in his memorandum of points and authorities in support of the anti-SLAPP motion that he entered with the consent of “other tenants in the park.” {CT 96}

This conclusion is supported by Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228 (Huntingdon). In that case, the appellate court held that the plaintiffs’ cause of action for an injunction against future trespass was subject to an anti-SLAPP motion because any trespass involved in the picketing activity at the home of one of the plaintiffs was incidental to the defendants’ exercise of their First Amendment rights. (Id. at pp. 1245-1246.)

B. Acts in Furtherance of Free Speech on a Public Issue

We next determine whether the act of which the original plaintiffs complain—publishing the flyer to an audience of park residents—was done in furtherance of Palesano’s constitutional rights of petition or free speech in connection with a public issue.

Lee concedes that Palesano was engaged in an act of free speech when he published his flyers to residents of the park. He then argues that these acts are not protected because they follow Lee’s illegal trespass. “Mere allegations that defendants acted illegally, however, do not render the anti-SLAPP statute inapplicable. . . . [¶] If the defendant concedes or the evidence conclusively establishes the conduct complained of was illegal, as a matter of law the defendant cannot make a prima facie showing the action arises from protected activity within the meaning of section 425.16. [Citations.]” (Huntingdon, supra, 129 Cal.App.4th at pp. 1245-1246.) Here, as in Huntingdon, Palesano certainly does not concede that he trespassed, nor does Lee’s evidence conclusively establish that Palesano trespassed. Palesano alleges that he entered Indian Village with the consent of park residents. The original plaintiffs alleged in the first amended complaint that Palesano did not have their consent to enter the park. However, they did not assert that Palesano entered without the consent of one or more park residents.

“There is no controversy that when Defendant PALESANO began passing out his ‘flyers’ to residents of the park in question he was engaged in communicative acts.” {AOB 18}

In the briefs and at oral argument, Lee emphasized that the trial court erred in overruling his evidentiary objections. Specifically, Lee argues that the record contains no admissible evidence supporting the allegation in Palesano’s anti-SLAPP motion that he entered the park with the consent of one or more tenants. In this opinion, this court does not rely on evidence that Palesano was invited into the park. Such evidence is not necessary under Huntingdon.

Lee further contends that “the dispute at the heart of Defendant’s claims and conduct was a private dispute between himself and his former employer, VILLAGE CONCEPTS” and that publishing the flyer “was an extension of the [sic] that private dispute with VILLAGE CONCEPTS and his frustration that they would not give into his demands that they pay him money.”

Palesano responds that “the public issue was that a manufacturer or distributor, [the original] Plaintiffs, were placing defective products into the stream of commerce. The [original] Plaintiffs knew of the defects and they failed to inform the consumers of the defects. Defendant took [it] upon himself to inform the community of the harm and to aid in the institution of judicial proceedings. The community consisted of 250 residents.”

The subject matter of the flyer was a warning about potential construction and installation defects in the park’s mobile homes. The flyer did not mention the private dispute over wages that the original plaintiffs contend was Palesano’s true motivation for publishing the flyer. Thus, we examine the subject matter of the flyer and the community to which it was published to determine whether it addresses an issue of public concern.

“[I]n cases 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, such that it warrants protection by a statute that embodies the public policy of encouraging participation in matters of public significance.” (Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107, 119, fn. omitted (Du Charme).)

Here, the flyer did encourage participation in a matter of public significance to the mobile home park community. The subject matter was the possibility of construction and installation defects allegedly common to many of the homes in the park. The flyer encouraged public participation by telling park residents that “Mark will not correct these things until you make him.” We have a little more trouble, initially, with the concept of whether the possibility of common construction and installation defects was the subject of an “ongoing controversy, dispute, or discussion,” absent evidence that members of the community were already discussing or addressing this subject. However, as used in Du Charme, the “ongoing” criterion was used to differentiate between “mere informational statements” contemplating no action by the listener and those that urged the listener to take a position on the matter under discussion. In that case, the information contained in the allegedly defamatory statement published to union members was that the union’s assistant business manager had been fired for financial mismanagement. The court described the facts as follows: “Du Charme’s termination was a fait accompli; its propriety was no longer at issue. Members of the local were not being urged to take any position on the matter. In fact, no action on their part was called for or contemplated.” (Du Charme, supra, 110 Cal.App.4th at p. 118.)

The situation in the present matter is distinguishable because, although the flyer may itself have been the opening volley in the “controversy, dispute or discussion” (meaning the controversy, etc. was not yet at that time “ongoing”), the flyer specifically contemplated, and in fact urged, action by members of the community to make “Mark” correct the alleged defects. The alleged defects were not a “fait accompli” as in Du Charme, but rather were a matter of current and future interest to the community, in whose resolution the flyer encouraged the community members to participate. Thus, we conclude that the flyer did address an issue of public concern under the standard set forth in Du Charme.

C. Likelihood of Success on the Merits

Having determined that the complaint arose out of Palesano’s exercise of his right to free speech in connection with an issue of public concern, we would normally move on to the second prong of the anti-SLAPP statute: whether the original plaintiffs established a reasonable probability of prevailing on the merits as to each of the four remaining causes of action.

However, Lee, as the appellant here, has the burden to affirmatively demonstrate in this appeal that the trial court erred when it determined that the original plaintiffs had not established a reasonable probability of prevailing on the merits. (Fundamental Investment Etc. Realty Fund v. Gradow (1994) 28 Cal.App.4th 966, 971.) This he has not done. In the approximately one page of Lee’s opening brief devoted to this key point, Lee merely asserts, without argument or citation to any legal authority, that “[the original] Plaintiff[s’] case contained at least minimal merit.” This is not even the correct legal standard. In support of his contention that the case contains “at least minimal merit,” Lee generally mentions the first amended complaint and Mark Wiener’s declaration opposing the special motion to strike for the assertions that Palesano: (1) trespassed; (2) was a disgruntled former employee with a solely private dispute with his former employer; and (3) e-mailed Mark Weiner and called him at home to threaten to make trouble unless he paid Palesano money. There is no discussion of the elements of the four remaining causes of action, nor of the allegations in the complaint or any other evidence on the record to aid this court in its independent review of whether the original plaintiffs had a reasonable probability of prevailing. “[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived and pass it without consideration. [Citations.]” (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 594, p. 627.) Lee’s briefs contain no cogent argument as to how the law and record support a determination that the original plaintiffs had a reasonable probability of prevailing on the merits of any of the four claims. For this reason, we choose to treat the issue as waived.

“Given the great detail of the verified complaint filed in this matter, the supporting declarations that established that the [original] Plaintiff[s’] complaint had at least minimal merit, the trial court erred by impliedly finding otherwise.” {AOB 25}

Disposition

The trial court’s order granting the special motion to strike is affirmed. Respondent is awarded his costs on appeal.

We concur: McKinster J., GAUT J.


Summaries of

Lee v. Palesano

California Court of Appeals, Fourth District, Second Division
Mar 14, 2008
No. E042243 (Cal. Ct. App. Mar. 14, 2008)
Case details for

Lee v. Palesano

Case Details

Full title:DON H. LEE, Plaintiff and Appellant, v. STANLEY PALESANO, Defendant and…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Mar 14, 2008

Citations

No. E042243 (Cal. Ct. App. Mar. 14, 2008)