Opinion
B318336
12-19-2023
ELISEO LOZANO et al., Plaintiffs and Respondents, v. JAIME HERAS, Defendant and Appellant.
Pyka Lenhardt Schnaider Dawkins, David P. Lenhardt and Fred S. Peters for Defendant and Appellant. Jeff Lewis Law and Jeffrey Lewis for Plaintiffs and Respondents.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. 21STCV21908 Theresa M. Traber, Judge. Reversed with directions.
Pyka Lenhardt Schnaider Dawkins, David P. Lenhardt and Fred S. Peters for Defendant and Appellant.
Jeff Lewis Law and Jeffrey Lewis for Plaintiffs and Respondents.
EGERTON, J.
Defendant Jaime Heras, the Hispanic Region Director for the Southern California Conference of Seventh-day Adventists (SCCSDA), appeals an order denying his special motion to strike under our state's anti-strategic lawsuit against public participation (anti-SLAPP) statute (Code Civ. Proc., § 425.16).Plaintiffs Eliseo Lozano and Changing People's Lives, Inc. (CPL) sued Heras for libel per se based on statements Heras made in an email he sent to an associate of CPL. The email requested CPL refrain from soliciting monetary donations from SCCSDA churches because the Adventists national organization had determined plaintiffs may have committed financial fraud. We conclude the allegedly libelous statements were made in furtherance of Heras's right of free speech in connection with an issue of public interest-preventing charity fraud in the Adventist community-and plaintiffs' evidence was insufficient to create a disputed issue of fact in response to Heras's showing that his statements were protected under the common interest privilege (Civ. Code, § 47, subd. (c)). We reverse.
Statutory references are to the Code of Civil Procedure unless otherwise designated.
BACKGROUND
1. The Lawsuit
Lozano is the current president and founder of CPL. He established the organization in 2003 with the mission of advancing the principles, beliefs, and doctrines of the Seventh-day Adventists. Maynor Escobar is a member of an Adventist church in Los Angeles and is well-respected among Spanish-speaking church members. According to CPL's website, Escobar is also the organization's Missions Director. Heras is the Hispanic Region Director for the SCCSDA. The SCCSDA is an administrative group governing Adventist churches in the Southern California region.
On January 27, 2021, Heras sent an email to Escobar regarding Lozano and CPL. The operative complaint alleges the email contained the following "false and defamatory allegations" about plaintiffs: "a. CPL held meetings in Michigan in late 2020, early 2021, promoting a project related to the distribution of bibles in Cuba. [¶] b. The project to provide bibles in Cuba was fictious [sic]. [¶] c. Former CPL employees have accused Lozano of misappropriation of funds." Based on these statements and the email's alleged request that "Escobar disassociate himself from Lozano and the CPL," plaintiffs asserted a single cause of action against Heras for libel per se.
2. The Anti-SLAPP Motion
Heras moved to strike the complaint under the anti-SLAPP statute's catchall provision (§ 425.16, subd. (e)(4)). He argued the allegedly libelous statements were made in furtherance of his right of free speech in connection with an issue of public interest-namely, charity fraud and "ensuring that charitable organizations that market themselves to the [Adventist] membership are faithful stewards of their donated dollars." Heras maintained plaintiffs had no probability of prevailing on their claim because, among other things, the statements were protected under the common interest privilege codified in Civil Code section 47, subdivision (c).
Heras offered a declaration in support of the motion. He first joined the Adventist ministry in 1991 and served as pastor at several churches before his appointment as Hispanic Region Director for the SCCSDA. In his current position, Heras is charged with overseeing 53 Hispanic churches- a duty that includes promoting "financial responsibility and faithful stewardship of church funds and donations."
In 2019, Heras served as pastor of an Adventist church in Paramount. He was contacted by Escobar, who asked to give a presentation to Heras's congregation promoting CPL's various ministries. Heras agreed, and Escobar gave the presentation sometime that year. At the end of his presentation, Escobar asked the congregation for a" 'special offering,'" essentially requesting donations earmarked for CPL and its ministries. Heras consented to the request. He remained in contact with Escobar and occasionally corresponded with him about different matters of concern to the church and its membership. Heras had no other contact with CPL or its associates.
In January 2021, Heras and several other Hispanic Region Directors received an email from the Seventh-day Adventist national organization's Vice President for Multilingual Ministries. The email forwarded two other emails that contained allegations against CPL and Lozano. One was from Harold Lance, a retired attorney who worked with several groups in the Adventist church. The other was from Kenneth Avila, a practicing attorney and lifelong member of the Adventist faith. According to the emails, both men had had recent interactions with potential whistleblowers who alleged financial improprieties by plaintiffs. Lance's email specifically discussed solicitations Lozano purportedly made on behalf of CPL in a Michigan church for a program to distribute bibles in Cuba. According to the email, Lance and an Adventist lay person who personally heard Lozano's solicitations had investigated the program and found it to be fraudulent.
When Heras read these materials, he was immediately concerned for the church members under his purview, as the pastors in those churches had informed him that CPL continued to give presentations throughout the Southern California Conference. He contacted Velino Salazar, the President of the SCCSDA and Heras's direct supervisor, to discuss the emails and their allegations. Salazar informed Heras that Lozano had a lengthy history with the church and that church leadership had repeatedly investigated CPL over the past 15 to 20 years. The conversation with Salazar satisfied Heras that he "had to act to protect the pastors, churches, and members of the faith" in his Conference. Salazar gave Heras his blessing to contact Escobar-Heras's only contact with CPL.
Heras prepared an email to Escobar and cc'd Salazar. The email informed Escobar that the SCCSDA had received "complaints" from the national organization about CPL and Lozano. The email explained, "These are some of the complaints and facts: [¶] [a.] In the last several months CPL has had several meetings in Michigan in different churches promoting a project for the distribution of bibles in Cuba. After an investigation with the Cuban Union and Conferences, it was discovered that it was fictional. [¶] [b.] Former CPL workers have accused Brother Eliseo Lozano of embezzling funds from the organization for personal use. [¶] [c.] This Ministry is currently under investigation and the evidence behind this complaint is being processed."
Heras also informed Escobar that "an extensive research process" had led to "CPL's ASI (Adventist Laymen's Services and Industries) membership [being] removed," and that "the church and ASI" had taken "significant" additional "steps to disassociate and distance them selves [sic] from CPL." Finally, Heras wrote, "This email serves two purposes. First, to inform you of the situation, being that you have been involved with this ministry and promoted presentations in our churches from the Southern California Conference. I assume, ignoring all these things. Secondly, to inform you that because of the situation the Adventist Church is asking you again that CPL refrain from presenting programs and asking for money from our Adventist churches."
In an email response Escobar thanked Heras for having "the confidence to share with your servant the situation and accusations so delicate towards Pr. Eliseo Lozano current president of the CPL International ministry." Escobar assured Heras that as long as Heras did "not consider it prudent, I will refrain from presenting programs and soliciting aid in the churches of our Conference or region." He also explained that the situation "regarding the bibles of Cuba happened in the year 2015, 2016," and suggested the complaint may have reflected "a misunderstanding since the times and challenges we face to bring humanitarian or evangelistic material or articles to Cuba are not normal and easy to understand because of the complexity of Cuba being a communist country." Escobar also affirmed that he was unaware "of any money from [CPL] that would have been used in an incorrect way" and expressed his "hope" that "if there is evidence of the accusation against Pr. Lozano [it would] be presented since it is a very delicate and dangerous accusation" and "contrary" to what Escobar had "been able to witness" of Lozano's work in Cuba through CPL. With his email, Escobar attached documents that he asked Heras to review in considering whether "to allow sharing about CPL ministry in our churches at some future time."
In addition to his own declaration, Heras submitted declarations by Avila, Lance, and Salazar, as well as declarations by Larry Dalson and Karnik Doukmetzian in support of the motion to strike. Avila and Lance offered their personal accounts of the details related in the emails forwarded to Heras. Avila explained that he had been CPL's Board Chairman for four months during 2017. After he left CPL, he was approached by one current and one former employee of the organization who disclosed "the possible mishandling of funds by Lozano for personal use and gain." One of the employees said they had proof of the allegations and that the CFO of CPL was willing to discuss the situation with church leadership. Avila sent an email relating the whistleblower allegations to Doukmetzian, the General Counsel for the Seventh-day Adventist national organization, and that email was later forwarded to Heras.
Lance explained that he sent the other email to Doukmetzian that was later forwarded to Heras. He sent this email after receiving information from Larry Dalson, a lifelong member of the Seventh-day Adventist faith whom Lance had known for 20 years, about an apparently fraudulent fundraising scheme that plaintiffs had perpetrated in Michigan. Dalson, who offered his own declaration with his personal account of the events, informed Lance of a seminar Lozano presented in a Michigan church in 2016 to promote CPL's projects in communist countries throughout the world. Dalson had attended the seminar and later spoke with Lozano about a project to distribute at least 12,000 bibles in Cuba. Lozano told Dalson the bibles were "held up in Customs" in the Port of Santiago de Cuba and, "for a cost of $2.00 per Bible, the Bibles could be 'released' from Customs and distributed to Seventh-day Adventist churches" in the communist country, "specifically in the East Cuba Conference." Dalson later received an email from CPL's office manager, confirming the details of the conversation with Lozano.
After unsuccessfully attempting to contact Lozano for several months to check on the status of the project, Dalson eventually travelled to Cuba in 2017 and discovered "by speaking with the President of the East Cuba Conference . . . that neither he nor any of the leadership of the East Cuba Conference had any knowledge of this program." The President of the East Cuba Conference told Dalson "that there was no shipment of Bibles stuck in port awaiting release, that he was unaware of any plans for a future shipment, that they had not received such a shipment in several years, and that, to release a container of Bibles from customs would require payment of a flat fee, much less than the 'per Bible' price that Mr. Lozano alleged this project required." Before leaving Cuba, Dalson spoke with representatives of three other Conferences in the country. All likewise said they "were unaware of any Bible project in Cuba, or any shipment of Bibles or materials [that] was being administered by either CPL or Lozano."
After returning from Cuba, Dalson made several unsuccessful attempts to contact Lozano to clear up the matter, "giving him the benefit of the doubt that something had been miscommunicated about this project." When Dalson did get through to a secretary with CPL, he was told "to send 'any amount of money' [he] wanted to support this project, so that even a few Bibles could be 'released' from Customs and distributed." Dalson had no further contact with Lozano.
3. Opposition to the Anti-SLAPP Motion
Plaintiffs opposed the special motion to strike, arguing it failed under both prongs of the anti-SLAPP analysis. With respect to the first prong, plaintiffs maintained the allegedly libelous statements were not protected activity because Heras had made them in a private email to a member of CPL. Thus, plaintiffs argued the statements had no prospect of contributing to a public debate on any matter of public interest. As for the second prong, plaintiffs maintained their evidence-a declaration by Lozano-was sufficient to prove a prima facie case for libel per se and to dispute that Heras made the statements without malice, as required to qualify for protection under common interest privilege.
In his supporting declaration, Lozano asserted Heras's email was "false in several respects," explaining: "First, from the time period July 1, 2020, to January 15, 2021, I was not in Michigan. Second, the project to provide bibles in Cuba is not fictitious. I and CPL have raised funds for and delivered bibles to Cuba. Third, I have not misappropriated funds and no former CPL employee has leveled such an accusation." Lozano also disputed Heras's statement that he was "simply doing his job" when he sent the email to Escobar. To substantiate his "disagree[ment] with that characterization," Lozano explained that he had "a long history of entering communist countries such as North Korea and Cuba to provide free shoes, free dental clinics, bibles and other goods and services," and the Adventist church had informed him that it "oppose[d]" those efforts because they "do not fit within the philosophy of the Church." Specifically, Lozano said he had a conversation on June 7, 2012 with "Church representative Ramon Cho, who informed me that the Church opposed my efforts to provide relief to communist countries." He had "the same conversation" on May 21, 2014 "with Church representatives, Karnik Doukmetzian and Ernesto Castillo, who reiterated the Church's position about wishing to oppose my efforts at all costs."
Lozano also disputed the accounts set forth in Avila's and Dalson's declarations. With respect to the current and former CPL employees with whom Avila met, Lozano emphasized the "employees are unnamed" and thus he had no "means of confronting this information or verifying these claims." He nonetheless said he was "not aware of any spending of funds that CPL has raised on any personal expenses for me." As for Dalson's account, Lozano said CPL "did deliver bibles to Cuba"; "[t]he bibles were stuck in shipment for a time"; "[a]dditional funds were necessary to secure their release"; and he had "superior knowledge to Mr. Dalson regarding [CPL's] fundraising efforts in Cuba."
4. The Ruling Denying the Special Motion to Strike
The trial court denied Heras's special motion to strike. While the court concluded Heras had met his burden to show plaintiffs' cause of action arose out of acts in furtherance of Heras's right of free speech, it found Lozano's declaration was sufficient, if credited, to sustain a favorable judgment on plaintiffs' libel per se claim. Regarding the common interest privilege, the court found plaintiffs had met their "minimal burden to show that the email was sent with malice, given that it was part of a campaign of harassment of [Lozano's] organization for years."
DISCUSSION
1. The Anti-SLAPP Analysis and Standard of Review
A special motion to strike under the anti-SLAPP statute"' "is a procedural remedy to dispose of lawsuits brought to chill the valid exercise of a party's constitutional right of petition or free speech. [Citation.] The purpose of the anti-SLAPP statute is to encourage participation in matters of public significance and prevent meritless litigation designed to chill the exercise of First Amendment rights. [Citation.] The Legislature has declared that the statute must be 'construed broadly' to that end."' [Citations.] This legislative directive 'is expressed in unambiguous terms.' [Citation.] '[T]he broad construction expressly called for in subdivision (a) of section 425.16 is desirable from the standpoint of judicial efficiency.'" (De Havilland v. FX Networks, LLC (2018) 21 Cal.App.5th 845, 854-855 (De Havilland); see Briggs v. Eden Council for Hope &Opportunity (1999) 19 Cal.4th 1106, 1119, 1121-1122 (Briggs).)
" 'Resolution of an anti-SLAPP motion "requires the court to engage in a two-step process."' [Citation.] First, the defendant must show the conduct underlying the plaintiff's cause of action arises from the defendant's constitutional rights of free speech or petition in connection with a public issue. [Citation.] If the defendant satisfies this prong, the burden shifts to the plaintiff to prove she has a legally sufficient claim and to prove with admissible evidence a probability that she will prevail on the claim. [Citations.] 'In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant [citation]; though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim.' [Citations.] '[O]n its face the [anti-SLAPP] statute contemplates consideration of the substantive merits of the plaintiff's complaint, as well as all available defenses to it .... This broad approach is required not only by the language of the statute, but by the policy reasons [that] gave rise to our anti-SLAPP statute.'" (De Havilland, supra, 21 Cal.App.5th at p. 855; see Wilson v. Parker, Covert &Chidester (2002) 28 Cal.4th 811, 821.)
We independently review the trial court's ruling on an anti-SLAPP motion under the de novo standard. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999.) "Only a cause of action that satisfies both prongs of the anti-SLAPP statute-i.e., that arises from protected speech or petitioning and lacks even minimal merit-is a SLAPP, subject to being stricken under the statute." (Navellier v. Sletten (2002) 29 Cal.4th 82, 89 (Navellier).)
2. Heras's Allegedly Libelous Statements Were Made in Furtherance of the Right of Free Speech in Connection with an Issue of Public Interest
Heras moved to strike plaintiffs' claim under section 425.16, subdivision (e)(4), which defines protected activity to include "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." (Italics added.) Commonly referred to as the "catchall provision," this subdivision "extends the protection of the anti-SLAPP statute beyond actual instances of free speech to all conduct in furtherance of the exercise of that right when undertaken in connection with a public issue or issue of public interest." (Ojjeh v. Brown (2019) 43 Cal.App.5th 1027, 1036; FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 139-140 (FilmOn).)
In FilmOn, our Supreme Court clarified that "a statement is made 'in connection with' a public issue when it contributes to -that is, 'participat[es]' in or furthers-some public conversation on the issue." (FilmOn, supra, 7 Cal.5th at p. 151.) The plaintiff in that case (a media entertainment entity) sued for trade libel, alleging the defendant (a business providing authentication services to customers considering advertising on the plaintiff's website) issued confidential reports to its paying clients that falsely stated the plaintiff's website contained adult content and copyright infringing materials. (Id. at pp. 141-142.) The defendant moved to strike the claims under the anti-SLAPP statute's catchall provision, arguing the dissemination of adult content and copyright infringing materials on the internet is an issue of public interest. (Id. at pp. 142, 150.) Our Supreme Court agreed the reports implicated the public's interest, but held it was" 'not enough'" under the catchall provision" 'that the statement refer to a subject of widespread public interest; the statement must in some manner itself contribute to the public debate.'" (Id. at pp. 150, 153-154, italics added.)
In reaching this holding, our Supreme Court acknowledged its longstanding precedents had recognized the catchall provision "may protect private events and conversations" concerning issues of public interest. (FilmOn, supra, 7 Cal.5th at p. 146; Navellier, supra, 29 Cal.4th at p. 91 ["When previously construing the statute, however, we have declined to hold 'that section 425.16 does not apply to events that transpire between private individuals.' "]; Briggs, supra, 19 Cal.4th at p. 1116 [same].) In view of this "broader" scope, and to ensure the statute is applied only to conduct in furtherance of constitutionally protected expression, our high court directed lower courts to "engage in a relatively careful analysis" to ensure private statements are sufficiently connected to an existing public discussion or debate. (FilmOn, at pp. 144-145.) The catchall provision, the FilmOn court emphasized, "demands 'some degree of closeness' between the challenged statements and the asserted public interest." (Id. at p. 150; see Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 465 [" '" '[T]here should be some degree of closeness between the challenged statements and the asserted public interest .... [T]he focus of the speaker's conduct should be the public interest ....'" [Citation.] Nevertheless, it may encompass activity between private people.' "].)
To assist courts in applying this analysis, FilmOn established a two-part inquiry to determine whether a defendant has met its burden to show "the requisite nexus between the challenged statements and the asserted issue of public interest" -i.e., to satisfy "the 'in connection with' requirement" of the catchall provision: "First, we ask what 'public issue or . . . issue of public interest' the speech in question implicates-a question we answer by looking to the content of the speech. [Citation.] Second, we ask what functional relationship exists between the speech and the public conversation about some matter of public interest." (FilmOn, supra, 7 Cal.5th at pp. 149-150.) This functional relationship inquiry requires a court to consider the statement's context, "including the identity of the speaker, the audience, and the purpose of the speech." (Id. at pp. 140, 150, 152.) The critical determination is "whether a defendant -through public or private speech or conduct-participated in, or furthered, the discourse that makes an issue one of public interest." (Id. at p. 151; see also id. at p. 154 [it is "by carefully observing this wedding of content and context that we can discern if conduct is 'in furtherance of' free speech 'in connection with' a public issue or issue of public interest"].)
In moving to strike plaintiffs' claim, Heras asserted his statements plainly implicated an issue of public interest -namely, charity fraud and "ensuring that charitable organizations that market themselves to the [Adventist] membership are faithful stewards of their donated dollars." Plaintiffs purport to dispute this contention, arguing (in a single line in their respondents' brief) that Heras's email merely "relates to a private dispute the Church has with CPL and Lozano." That narrow reading simply is not borne out by the email's contents, which evidence a palpable concern for protecting congregations within the SCCSDA from predatory fundraising. Charity fraud and its prevention, even if related to only CPL's contact with the 53 Hispanic churches that comprise the SCCSDA, is an issue of public interest. (See, e.g., Grenier v. Taylor (2015) 234 Cal.App.4th 471, 483 (Grenier) ["Considering that Church members donate money to the Church, allegations regarding theft and misuse of those funds is of concern to the membership."]; Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 900 [statements "in the nature of consumer protection information" published about one broker and its owner could "aid consumers choosing among brokers, [and], therefore, were directly connected to an issue of public concern"]; Terry v. Davis Community Church (2005) 131 Cal.App.4th 1534, 1547 (Terry) [rejecting contention that allegedly slanderous statements merely concerned "a private relationship"; holding "issue as to whether or not an adult who interacts with minors in a church youth program has engaged in an inappropriate relationship with any of the minors is clearly a matter of public interest"]; Yang v. Tenet Healthcare Inc. (2020) 48 Cal.App.5th 939, 947 (Yang) [the "qualifications, competence, and professional ethics" of a single licensed physician is "a public issue"].)
Plaintiffs contend Heras failed to meet his burden as appellant because he did not address the first prong of the anti-SLAPP analysis in his opening brief. To be sure, an appellant may be deemed to have forfeited an issue not presented in the opening brief; however, as a practical matter, this principle applies only to those issues asserted to meet the appellant's burden to establish reversible error. (See, e.g, De Freitas v. De Freitas (1955) 133 Cal.App.2d 769, 770 [affirming order "pursuant to the settled rule that claims of error not advanced in the opening brief are waived"]; see also Walling v. Kimball (1941) 17 Cal.2d 364, 373 [" 'an appellant has the burden of showing reversible error,'" and," 'in the absence of such showing, the judgment or order appealed from will be affirmed' "].) Here, Heras had no reason to assert reversible error with respect to prong one, because the trial court agreed with Heras and concluded plaintiffs' claims arose from protected activity. (See, e.g., Orange County Water Dist. v. Sabic Innovative Plastics US, LLC (2017) 14 Cal.App.5th 343, 379-380 [where "trial court did not grant summary adjudication of [appellant's] claim on grounds specific to [site-specific issues]," appellant "was not required to address [those issues] in its opening brief" and "[n]o forfeiture occurred"].) In any event, a "reviewing court is empowered to decide a case on any proper points or theories, whether urged by counsel or not [citations], and will exercise that authority under fair procedure in an appropriate case." (Tan v. California Fed. Sav. & Loan Assn. (1983) 140 Cal.App.3d 800, 811.) As plaintiffs challenge the trial court's ruling under prong one, this is an appropriate case to address these issues, even if Heras did not raise them in his opening brief. (See, e.g., ibid.)
Plaintiffs rely upon Dual Diagnosis Treatment Center, Inc. v. Buschel (2016) 6 Cal.App.5th 1098, which held statements concerning the "licensing status of a single rehabilitation facility" did not implicate a" 'widespread, public interest'" under the catchall provision because there was no showing that the facility "impacts, or has the potential to impact, a broad segment of society." (Id. at p. 1105.) The Yang court rejected this holding, noting Dual Diagnosis "was decided years before, and therefore without the benefit of, our Supreme Court's opinion in FilmOn." (Yang, supra, 48 Cal.App.5th at p. 947.) We likewise are not persuaded by the case's reasoning, which conflicts with the commonsense recognition that "members of the public, as consumers of medical services, have an interest in being informed of issues concerning particular doctors and health care facilities." (Healthsmart Pacific, Inc. v. Kabateck (2016) 7 Cal.App.5th 416, 429, italics added.) The same is true of church community members who, as the source of charitable donations, have an interest in knowing those donations will be used in a manner consistent with the purposes for which they were expressly solicited. (See Grenier, supra, 234 Cal.App.4th at p. 483.) We also reject plaintiffs' contention that it "was the conduct of posting the statement in a public forum-not the content of the statement" that underpinned the court's holding in Grenier. Contrary to that characterization, the Grenier court expressly recognized that "not every Web site post involves an issue of public interest" before explaining why the content of allegedly defamatory statements about a pastor stealing money from his church implicated an issue of public interest under the catchall provision. (Grenier, supra, 234 Cal.App.4th at pp. 481, 483.)
In any event, plaintiffs' principal argument is not directed at the first part of the FilmOn inquiry but the second-that is, whether considering the context of Heras's email the allegedly libelous statements "participated in, or furthered, the discourse" that makes charity fraud and its prevention an issue of public interest. (FilmOn, supra, 7 Cal.5th at p. 151.) Plaintiffs contend "Heras did nothing to participate in or further any public debate," emphasizing the private nature of the email and the fact that it was sent to an associate of CPL. In their telling, Heras's email" 'never entered the public sphere' and was never intended to," thus any reference in the email to "a matter that might be of interest to the public" was insufficient to bring the challenged statements within the catchall provision. We disagree.
Murray v. Tran (2020) 55 Cal.App.5th 10 (Murray) is instructive. The plaintiff (Murray, a dentist) sued his former partner (Tran, also a dentist) for defamation based on a private phone call Tran made to Murray's new employer. (Id. at pp. 34-35.) During the call, Tran explained his purpose was to" 'protect'" the employer's patients from Murray, who had provided" 'substandard care'" to patients at his former practice. (Id. at p. 35.) Applying the two-part test articulated in FilmOn, the Murray court concluded Tran had "met his burden to show the alleged statements to Dr. Murray's current employer furthered the public discourse that made the issue one of public interest." (Murray, at p. 35.) The reviewing court explained: "Dr. Tran specifically told [the employer] that he wanted to warn him about problems with Dr. Murray's work because he wanted to 'protect' [the employer's] patients from 'substandard care.' These statements-made to a current employer-were directly tethered to the issue of public interest (a dentist's competence to perform dental work) and promoted the public conversation on that issue because they were made to a person who had direct connection to and authority over the patient population with whom Dr. Murray was working at the time." (Ibid.)
Here, as in Murray, all relevant contextual considerations -the speaker, the audience, and the purpose of the speech- support our conclusion that Heras's statements were closely connected to, and thus in furtherance of, the discourse that makes charity fraud and its prevention in SCCSDA congregations an issue of public interest. (FilmOn, supra, 7 Cal.5th at pp. 150-151.) Part of Heras's job as Hispanic Region Director "is to ensure that charities raising funds in the churches in [the SCCSDA] are ethical and properly account for donations." He "knew from speaking with other pastors of the 53 churches under [his] purview that CPL continued to give presentations throughout [his] Conference." Heras had also met Escobar in connection with a presentation Escobar gave to promote CPL's ministries at Heras's church years earlier, and he remained in touch with Escobar who Heras believed still held a position with CPL as the organization's Missions Director.
In this context, it is not difficult to discern how Heras's email to Escobar (his only contact at CPL) would advance the public interest in preventing charity fraud targeting the Adventist community in general and SCCSDA congregations in particular. Given their past interactions and Escobar's position with CPL, Heras had good reason to believe not only that Escobar was unaware of the allegations against plaintiffs, but also that Escobar had authority to suspend any further CPL presentations within the SCCSDA that might defraud its congregants. And that, as stated in the email, was the communication's purpose: to "inform [Escobar] of the situation" as he had been "involved with [CPL's] ministry" and was likely "ignor[ant]" of the allegations; and to "ask[ ]" Escobar to have "CPL refrain from presenting programs and asking for money from [the] Adventist churches." As in Murray, Heras's email was "directly tethered to the issue of public interest"-charity fraud- and it "promoted the public conversation on that issue" because it was made to "a person who had direct connection to and authority over" CPL's charitable solicitations within the SCCSDA. (Murray, supra, 55 Cal.App.5th at p. 35.)
Contrary to plaintiffs' contention, the private nature of Heras's email to Escobar is not dispositive. (See FilmOn, supra, 7 Cal.5th at p. 153 ["no single element is dispositive- not DoubleVerify's for-profit status, or the confidentiality of the reports, or the use to which its clients put its reports"].) To be sure, nothing in the email clearly expresses an intention on Heras's part to keep the communication confidential, and nothing in the record forecloses the possibility (or even likelihood) that Escobar would share the allegations with a wider audience. But even if we assume the email remained private, this still does not compel the conclusion that it did not participate in or further the discourse that makes charity fraud an issue of public importance. On the contrary, by disclosing complaints directly related to the issue to a person who had authority within CPL, Heras could reasonably expect to alter the organization's fundraising behavior and thus protect the members of the congregations under his purview. And, as Escobar's response proves, Heras's email in fact had that intended effect-Escobar acknowledged he was unaware of the allegations and agreed CPL would not solicit donations from SCCSDA congregations while investigations into the charges of charity fraud were pending. The context here shows the" '"' "focus of [Heras's] conduct [was] the public interest," '" '" even though it" '"' "encompass[ed] activity between private people" '"' "; the challenged statements worked to" 'affect large numbers of people beyond the direct participants' "; and the communication" 'occur[red] in the context of an ongoing controversy, dispute or discussion.'" (FilmOn, at pp. 145-146.) These contextual factors substantively distinguish Heras's email from the confidential reports at issue in FilmOn, which had no impact on any public decision or discussion about the distribution of adult content or copyright infringing materials on the internet. (See, e.g., Industrial Waste &Debris Box Service, Inc. v. Murphy (2016) 4 Cal.App.5th 1135, 1148 [for-profit consultant's report "shed light" on subjects of "limited landfill capacity and the environmental effects of waste disposal" and thus contributed to issue of public interest by commenting on "whether and to what degree waste hauling companies in Sonoma County were meeting government standards"]; and see FilmOn, at p. 154 [discussing Industrial Waste with approval and observing it was in "the extent of its contribution to, or participation in, the public discussion that DoubleVerify's report diverges from the report at issue in Industrial Waste"].)
We note Escobar also responded with what he believed to be exculpatory information and documentation that he asked Heras and the SCCSDA to consider in deciding whether "to allow sharing about CPL ministry in our churches at some future time." This further demonstrates how Heras's private email worked to advance the debate within the SCCSDA and CPL on this issue of public importance.
Having assessed the content of the email and its context, we conclude Heras's challenged statements were closely connected to, and thus in furtherance of, the public interest in charity fraud and its prevention. (See, e.g., Cross v. Cooper (2011) 197 Cal.App.4th 357, 375 [finding the defendant's conduct "directly related" to an issue of public interest because it "served th[e] interests" of preventing child abuse and protecting children]; and see FilmOn, supra, 7 Cal.5th at p. 151 [citing Cross with approval in instructing courts to "examine whether a defendant-through public or private speech or conduct- participated in, or furthered, the discourse that makes an issue one of public interest"].)
3. Plaintiffs' Evidence Failed to Rebut Heras's Showing that His Statements Were Protected Under the Common Interest Privilege
When a defendant makes the required showing on the first prong of the anti-SLAPP analysis," 'the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.'" (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788.) In evaluating the second prong, a court" 'does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff's evidence as true, and evaluates the defendant's showing only to determine if it defeats the plaintiff's claim as a matter of law.'" (Ibid.) However, "a plaintiff seeking to demonstrate the merit of the claim 'may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.'" (Ibid.) "[S]peculative inferences not supported by the evidence proffered need not be considered." (Id. at p. 795.)
Plaintiffs cannot establish the probable validity of their libel per se claim because the only competent admissible evidence in the record establishes Heras's communication was protected under the common interest privilege. (See Civ. Code, § 45 ["Libel is a false and unprivileged publication . . . which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation." (Italics added.)]; id., § 45a [Libel per se is "libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact."].)
"Civil Code section 47, subdivision (c) codifies the common law privilege of common interest, 'which protected communications made in good faith on a subject in which the speaker and hearer shared an interest or duty.'" (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 914 (Kashian).) The statute defines a "privileged publication or broadcast" as one made in "a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information." (Civ. Code, § 47, subd. (c).)
"The common interest privilege is usually described as a qualified or conditional one," meaning it arises only upon a showing that the relevant communication was "made without malice," and it "can be overcome by a showing of malice." (Kashian, supra, 98 Cal.App.4th at pp. 914-915.) "Malice for purposes of the statute means' "a state of mind arising from hatred or ill will, evidencing a willingness to vex, annoy or injure another person." '" (Id. at p. 915; Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 723, fn. 7.) "[M]alice is not inferred from the communication." (Civ. Code, § 48.) It may, however, "be established by showing the publisher of a defamatory statement lacked reasonable grounds to believe the statement was true, and therefore acted with a reckless disregard for the rights of the person defamed." (Kashian, at p. 931.)
"Application of the privilege involves a two-step analysis. The defendant has the initial burden of showing the allegedly defamatory statement was made on a privileged occasion, whereupon the burden shifts to the plaintiff to show the defendant made the statement with malice. [Citation.] The existence of the privilege is ordinarily a question of law for the court." (Kashian, supra, 98 Cal.App.4th at p. 915.)
Heras's declaration and his other supporting evidence satisfied his initial burden to show his allegedly libelous statements were privileged. As confirmed in both Heras's and Lozano's declarations, Escobar, like Heras, is a member of the Seventh-day Adventist church. It is settled that the common interest privilege "applies to communications between church members on church matters." (Terry, supra, 131 Cal.App.4th at p. 1556; Brewer v. Second Baptist Church (1948) 32 Cal.2d 791, 796-797 ["Ordinarily, the common interest of the members of a church in church matters is sufficient to give rise to a qualified privilege to communications between members on subjects relating to the church's interest."].) Complaints of predatory fundraising targeting Seventh-day Adventist churches indisputably are the sort of "church matters" that implicate Heras's and Escobar's common interests. (Terry, at p. 1556.)
As for malice, Heras declared he found the accounts about the whistleblower complaints against plaintiffs "credible"; upon reading those accounts he was "immediately concerned for the members of the churches under [his] purview"; he contacted his direct supervisor to discuss the emails and learned of other investigations concerning CPL; and, after speaking with his supervisor, Heras knew he "had to act to protect the pastors, churches, and members of the faith under [his] purview" because "CPL continued to give presentations throughout the Southern California Conference." This evidence is sufficient to prove Heras made the challenged statements out of a genuine concern for protecting his congregants from predatory fundraising and not out of hatred or ill will toward plaintiffs.
The trial court nevertheless concluded plaintiffs met their "minimal burden to show that the email was sent with malice," reasoning Lozano's declaration was sufficient, if credited, to prove Heras's email "was part of a campaign of harassment" against plaintiffs. The problem with this analysis is there was no evidence that Heras knew of, much less that he was involved in, this "campaign." The trial court relied on a portion of Lozano's declaration stating that, in June 2012 and again in May 2014, Lozano had conversations with church representatives Ramon Cho, Karnik Doukmetzian, and Ernesto Castillo, who told Lozano "the Church opposed [his] efforts to provide relief to communist countries." Critically, Lozano does not aver that Heras was involved in these conversations, and there is no evidence that Heras knew of the church's claimed position on plaintiffs' relief efforts in communist countries. On the contrary, the only evidence we have is that Heras welcomed Escobar to solicit donations on behalf of CPL's ministries when Heras was a church pastor; he continued to correspond with Escobar about "different matters of concern to the church and its membership" in the years that followed; and he raised concerns about CPL's fundraising activities only in January 2021 after he received the forwarded emails disclosing the whistleblower complaints against plaintiffs. Without evidence to prove Heras knew about the church's opposition to plaintiffs' ministries, it was improper to speculate that he may have been personally motivated by matters disclosed to Lozano by other church representatives many years earlier. (See, e.g., Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1053-1054 [where declarants did not personally observe incident underpinning allegedly defamatory statements, their assertion that incident described "was not typical of [plaintiffs'] employment practices" amounted to speculation insufficient to establish the minimal merit of claim].)
For their part, plaintiffs appear to argue malice can be inferred from evidence that "Heras did not contact Lozano, Heras did not review the audited financial statements for CPL and Heras did not review the photographs of delivered bibles before he sent his damaging email." The latter two points are easily disposed of, as there is no evidence that Heras was aware of, let alone that he had access to, CPL's audited financial statements or photographs before sending the email to Escobar. As for the charge that malice can be inferred because Heras neglected to contact Lozano, we note that common negligence is insufficient to establish malice-it"' "is only when the negligence amounts to a reckless or wanton disregard for the truth, so as to reasonably imply a willful disregard for or avoidance of accuracy, that malice is shown." '" (Kashian, supra, 98 Cal.App.4th at p. 931.) Heras did not know Lozano. His only contact within CPL was Escobar, with whom Heras had maintained a cordial relationship over the years. On this record, no reasonable inference could be drawn that Heras acted with a reckless or wanton disregard for the truth when he contacted Escobar, instead of Lozano, about facially credible allegations of charity fraud. Plaintiffs failed to raise a reasonable inference that Heras acted with malice and, consequently, failed to meet their burden to establish a probability of prevailing on their libel per se claim. (See, e.g., id. at pp. 932-933 [notwithstanding public reporting tending to show allegedly libelous letter was inaccurate, evidence was insufficient to raise inference that defendant acted with reckless or wanton disregard for the truth when he wrote the letter].)
DISPOSITION
The order denying the motion to strike is reversed. The trial court is directed to enter a new order granting the motion and awarding Heras his attorney fees and costs. (§ 425.16, subd. (c).) Heras is entitled to costs on appeal.
We concur: EDMON, P. J., LAVIN, J.