Opinion
B289328
02-05-2020
CHRISTOPHER MAGGIORE, Plaintiff and Appellant, v. LANCE VANDENHENDE, Defendant and Respondent.
The Law Offices of Cole Sheridan and Cole Sheridan for Plaintiff and Appellant. Van Susteren Law Group and Adam Van Susteren for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. Los Angeles County Super. Ct. No. BC688133 APPEAL from an order of the Superior Court of Los Angeles County, Barbara M. Scheper, Judge. Reversed. The Law Offices of Cole Sheridan and Cole Sheridan for Plaintiff and Appellant. Van Susteren Law Group and Adam Van Susteren for Defendant and Respondent.
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Plaintiff Christopher Maggiore appeals from an order striking his claims for trade libel and tortious interference with contract under California's anti-strategic lawsuit against public participation (anti-SLAPP) statute (Code Civ. Proc., § 425.16). Plaintiff sued defendant Lance Vandenhende alleging defendant made "false accusations to representatives of Frontiers Records, with the intent to hamper, damage and/or tortiously interfere with [a] pre-existing contract between Plaintiff and Frontiers Records" in or after June 2017. Defendant moved to strike the trade libel and tortious interference claims, relying exclusively upon evidence of statements he made to a rock music website in 2014—not statements made to Frontiers Records in 2017. The trial court granted the special motion to strike after plaintiff did not file an opposition. We conclude defendant failed to meet his burden to show the challenged claims arose out of protected activity under the anti-SLAPP statute's first prong. We reverse.
Statutory references are to the Code of Civil Procedure unless otherwise designated.
We deferred rulings on defendant's motions to augment the record, strike portions of the record and opening brief, and for sanctions against plaintiff. We now grant the motion to augment and deny the motion to strike and the motion for sanctions.
FACTS AND PROCEDURAL BACKGROUND
Plaintiff is a recording artist, and has been a member, guitar player, songwriter, and producer of the band Pretty Boy Floyd. During the relevant period, plaintiff had a contractual relationship with Frontiers Records for the release and distribution of a new Pretty Boy Floyd album, entitled "Public Enemies."
Defendant is the owner of Demon Doll Records, Inc. (Demon Doll), a record manufacturer and distributor.
On December 22, 2017, plaintiff filed a complaint against defendant, asserting, among other claims, causes of action for trade libel and tortious interference with contractual relations. The claims stem from defendant's alleged campaign to "defame[ ]" plaintiff after plaintiff demanded defendant cease and desist from distributing unauthorized copies of certain copyrighted recordings through Demon Doll. In June 2017, plaintiff contacted defendant through Demon Doll's online store to inquire about the recordings and how defendant had acquired the rights to distribute them. Defendant allegedly responded with "death threats" and smears against plaintiff's professional reputation and character. Specifically, the complaint alleges: "Defendants have actively defamed Plaintiff's character and business reputation with false accusations of misconduct and fraud with the specific intent to cause irreparable damage to Plaintiff's business reputation and relationships within the music industry. Specifically, Defendants have made defamatory statements and false accusations to representatives of Frontiers Records, with the intent to hamper, damage and/or tortiously interfere with the pre-existing contract between Plaintiff and Frontiers Records for the release and distribution of the new PRETTY BOY FLOYD commercial release, entitled 'Public Enemies'." (First italics added.)
The complaint also names Demon Doll and Aeriel Stiles, a former member of Pretty Boy Floyd, as defendants. Demon Doll and Stiles were not parties to the special motion to strike and are not parties to this appeal.
On February 9, 2018, defendant filed a special motion to strike the complaint's causes of action for trade libel and tortious interference with contractual relations. In his motion and supporting declaration, defendant asserted the challenged causes of action arose out of a series of communications he had with the operator of a rock music Web site, <http://www.metalsludge.tv> (Metal Sludge), in 2014. According to defendant, in those communications, he disclosed that plaintiff had falsely claimed to have written all the songs for plaintiff's 2014 album, "Kristy Majors and The Thrill Kills," when in fact, "almost all of the songs were written and first performed by a band named Suckerpunch." In 2014, Metal Sludge published two articles about the "Suckerpunch song scandal." While the articles do not identify defendant as the source of any information, defendant's declaration asserted, "I helped provide Metal Sludge with information for the story."
Defendant's declaration also confirmed, consistent with the complaint's allegations, that plaintiff contacted defendant in June 2017 to demand defendant and Demon Doll cease and desist from distributing plaintiff's copyrighted recordings. Notwithstanding the complaint's allegations regarding defendant's subsequent "defamatory statements and false accusations to representatives of Frontiers Records," neither defendant's motion, nor his declaration, identified any communications that defendant had with representatives of Frontiers Records in or after June 2017.
Plaintiff did not file an opposition to the special motion to strike.
On March 8, 2018, the trial court granted the motion, concluding defendant carried his burden to show the trade libel and tortious interference claims arose from protected activity, and plaintiff had failed to carry his burden to demonstrate the claims had minimal merit. Plaintiff filed a timely appeal from the ruling.
DISCUSSION
The anti-SLAPP statute, section 425.16, provides a procedure for expeditiously resolving "nonmeritorious litigation meant to chill the valid exercise of the constitutional rights of freedom of speech and petition in connection with a public issue." (Sipple v. Foundation for Nat. Progress (1999) 71 Cal.App.4th 226, 235.) "When served with a SLAPP suit, the defendant may immediately move to strike the complaint under section 425.16. To determine whether this motion should be granted, the trial court must engage in a two-step process." (Hansen v. Department of Corrections & Rehabilitation (2008) 171 Cal.App.4th 1537, 1543; Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon).)
The first prong of the anti-SLAPP analysis requires the court to decide "whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity." (Equilon, supra, 29 Cal.4th at p. 67; § 425.16, subd. (b)(1).) "In the anti-SLAPP context, the critical point is whether the plaintiff's cause of action itself was based on an act in furtherance of the defendant's right of petition or free speech." (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) "In deciding whether the 'arising from' requirement is met, a court considers 'the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.' " (Id. at p. 79, quoting § 425.16, subd. (b).)
If the court finds the defendant has made the threshold showing, the analysis proceeds to the second prong, under which the court "determines whether the plaintiff has demonstrated a probability of prevailing on the claim." (Equilon, supra, 29 Cal.4th at p. 67; § 425.16, subd. (b)(1).) However, if the defendant fails to make a threshold showing that the plaintiff's causes of action were based on protected activity, then the burden does not shift to the plaintiff to demonstrate a probability of prevailing on the claims, and the anti-SLAPP motion must be denied. (Martin v. Inland Empire Utilities Agency (2011) 198 Cal.App.4th 611, 624, 629.)
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.) In this case, because defendant failed to meet his threshold burden under the first prong, his motion should have been denied.
The first prong of the anti-SLAPP analysis "turns on two subsidiary questions: (1) What conduct does the challenged cause of action 'arise[ ] from'; and (2) is that conduct 'protected activity' under the anti-SLAPP statute?" (Mission Beverage Co. v. Pabst Brewing Co., LLC (2017) 15 Cal.App.5th 686, 697-698, italics added.) At this first step of the analysis, "the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them." (Baral v. Schnitt (2016) 1 Cal.5th 376, 396, italics added.) "The question is what is pled—not what is proven" (Comstock v. Aber (2012) 212 Cal.App.4th 931, 942), and the court must accept the pleaded facts of the complaint as true in conducting the first prong analysis. (Young v. Tri-City Healthcare Dist. (2012) 210 Cal.App.4th 35, 54.)
Here, the pleaded facts were somewhat vague about the content of defendant's allegedly tortious and defamatory statements, but the allegations were specific in one key respect—they identified the party to whom the statements were made. According to the complaint, following a June 2017 dispute over defendant's alleged unauthorized distribution of certain copyrighted recordings, defendant "actively defamed Plaintiff's character and business reputation with false accusations of misconduct and fraud with the specific intent to cause irreparable damage to Plaintiff's business reputation and relationships within the music industry." "Specifically," the complaint alleges, defendant "made defamatory statements and false accusations to representatives of Frontiers Records, with the intent to hamper, damage and/or tortiously interfere with the pre-existing contract between Plaintiff and Frontiers Records for the release and distribution of the new PRETTY BOY FLOYD commercial release, entitled 'Public Enemies.' " (First italics added.) The complaint incorporates those allegations by reference and substantively repeats them in each of the challenged causes of action for trade libel and tortious interference with contractual relations.
Notwithstanding these allegations, defendant's anti-SLAPP motion argued the challenged claims arose out of communications he had with the Metal Sludge website three years earlier concerning plaintiff's purportedly false claim that he wrote all the songs for his 2014 album, when in fact the songs were written and first performed by a band named "Suckerpunch." In other words, while defendant ignored the specific charge that he made defamatory statements "to representatives of Frontiers Records," he tried to recast the complaint's otherwise broad allegations about "defamatory statements and false accusations" into different (and presumably more easily defeated) allegations about the "Suckerpunch song scandal" that, according to defendant, "became big news in the metal music scene" in 2014. Those allegations, however, do not appear in the complaint and, thus, cannot serve as a basis to satisfy defendant's burden under the anti-SLAPP statute's first prong. (See, e.g., Central Valley Hospitalists v. Dignity Health (2018) 19 Cal.App.5th 203, 217-218 (Central Valley Hospitalists) [where complaint contained broad allegations but specifically disclaimed being based on a type of protected activity, defendant could not satisfy first prong of anti-SLAPP statute by arguing the complaint must, in fact, be based on the disclaimed protected activity].)
Even when faced with a complaint lacking the necessary specificity to survive a demurrer, a defendant cannot simply redraft the complaint to force the allegations within the confines of protected activity under the anti-SLAPP statute. Martin v. Inland Empire Utilities Agency (2011) 198 Cal.App.4th 611 (Martin) is instructive. The plaintiff in Martin sued his employer for defamation, alleging the employer, a public utility agency acting through its CEO, had "fabricated false allegations and uttered comm[unic]ations for the specific purpose of injuring Plaintiff in his career and occupation." (Id. at pp. 615-616.) The trial court purported to grant the employer's special motion to strike with leave to amend, concluding the plaintiff failed to adequately plead the defamation claim. (Id. at p. 620.) The reviewing court held the motion should have been denied, explaining: "[D]efendants failed to make an initial prima facie showing on the first prong of the anti-SLAPP statute; in other words, defendants did not meet their burden to show that the allegedly defamatory statements were based on an act in furtherance of defendants' rights of petition or free speech. Indeed, it is difficult, if not impossible, to see how defendants could have met this burden with plaintiff's failure to specifically plead the allegedly defamatory statements. [Although], we wholeheartedly agree with defendants' contentions . . . that plaintiff's failure to specifically plead those statements demonstrates . . . that plaintiff had no probability of prevailing on the defamation cause of action[,] . . . [the anti-SLAPP statute] has no mechanism for simply skipping over the first prong—defendants' burden to show the statements were protected, and go[ing] directly to the second prong—plaintiff's burden to show a probability of prevailing." (Id. at pp. 627-628, italics added.) Because the defendant failed to meet its burden under the first prong, the Martin court held the anti-SLAPP motion should have been denied, even though the plaintiff failed to plead a cause of action sufficient to withstand a demurrer. (Ibid.)
The Martin court held an order granting an anti-SLAPP motion with leave to amend is the "functional equivalent" of a denial, since the cause of action is not actually stricken. (Martin, supra, 198 Cal.App.4th at p. 629; accord Nguyen-Lam v. Cao (2009) 171 Cal.App.4th 858, 870 ["authorizing an amendment [in ruling on an anti-SLAPP motion] is tantamount to denying the strike motion"].)
The court in Medical Marijuana, Inc. v. ProjectCBD.com (2016) 6 Cal.App.5th 602 reached the same conclusion. There, the court affirmed the denial of an anti-SLAPP motion, while squarely rejecting the defendant's effort to recast otherwise vague allegations to establish the claim arose from protected activity: "It would be inappropriate for us to insert into a pleading claims for relief based on allegations of activities that plaintiffs simply have not identified, even if the parties suggest on appeal how plaintiffs might have intended to frame those claims or attempt to identify the specific conduct or assertions of statements alleged to be false on which plaintiffs intended to base such claims for relief. It is not our role to engage in what would amount to a redrafting of the first amended complaint in order to read that document as alleging conduct that supports a claim that has not in fact been specifically alleged, and then assess whether the pleading that we have essentially drafted could survive the anti-SLAPP motion directed at it." (Id. at p. 621, fn. omitted; see also Central Valley Hospitalists, supra, 19 Cal.App.5th at p. 218 [" 'If there are no acts alleged, there can be no showing that alleged acts arise from protected activity.' "].)
It may appear counterintuitive that a plaintiff whose complaint is too vague to survive demurrer can rely on that same vagueness to defeat an anti-SLAPP motion. But the remedy for this problem is clear: the defendant can first demur on the basis of uncertainty to obtain an amended complaint specific enough to allow a first prong analysis. (See Central Valley Hospitalists, supra, 19 Cal.App.5th at pp. 206-207; Martin, supra, 198 Cal.App.4th at p. 631.)
While these cases support our conclusion under the first prong, here, the problem for defendant is not just that the relevant allegations were too vague to determine whether his statements involved the "right of petition or free speech . . . in connection with a public issue." (§ 425.16, subd. (b)(1); see Central Valley Hospitalists, supra, 19 Cal.App.5th at p. 218.) Rather, the more significant problem for defendant is the specificity of the pleaded facts, which refer to defamatory statements he allegedly made "to representatives of Frontiers Records." Because defendant based his anti-SLAPP motion on statements he made to the Metal Sludge website, and not the alleged statements he made to representatives of Frontiers Records, defendant failed to meet his burden under the anti-SLAPP statute's first prong. The trial court erred in granting the special motion to strike.
We recognize the trade libel claim was not so specific, referring to disparaging statements made to induce "others, including but not limited to Frontiers Records, not to deal with" plaintiff. Nevertheless, because the allegations do not refer to statements made to Metal Sludge about the "Suckerpunch song scandal," this ambiguity does not change our conclusion. (See Medical Marijuana, Inc. v. ProjectCBD.com, supra, 6 Cal.App.5th at p. 621.)
After the trial court granted the antiSLAPP motion, plaintiff filed an ex parte application to set aside the ruling on the ground that he was misled about an agreement with opposing counsel to continue the hearing so that plaintiff could file an opposition. While our reversal of the antiSLAPP ruling means we need not address this issue, we note plaintiff's supporting declaration identified a communication he received from defendant that is conspicuously consistent with the complaint's allegations. The statement reads: "I've already told those guys [Frontiers Records] that you're a convicted felon with a rap sheet for extortion and gun violence against your artists, forcing recording rights from them against their will. They won't stick around to find out whether it's true—watch they'll just drop your business. Your business will crater if they think you're a convicted felon." (Italics omitted.)
DISPOSITION
The order is reversed. Plaintiff is entitled to costs.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J. We concur:
EDMON, P. J.
DHANIDINA, J.