Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BC402506. John P. Shook, Judge.
Law Offices of William R. Ramsey and William R. Ramsey for Plaintiffs and Appellants.
Lawrence Rosenzweig for Defendant and Respondent.
CHANEY, J.
Plaintiffs Lourdes Navarro and Universal Placement International, Inc. (Navarro and UPI, or plaintiffs) appeal from an order of the Los Angeles Superior Court granting the special motion to strike brought by defendant Ingrid Cruz under Code of Civil Procedure section 425.16 (section 425.16), the anti-SLAPP law. Plaintiffs also appeal from the subsequent award of attorney fees and costs to Cruz in the amount of $31,645.82. We affirm in part, and reverse in part.
SLAPP is an acronym for Strategic Lawsuit Against Public Participation. SLAPP litigation is generally litigation without merit, filed in order to dissuade or punish the exercise of First Amendment rights by defendants. (Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, 858.)
BACKGROUND
Navarro and UPI filed a verified complaint against Cruz in November 2008, seeking compensatory and punitive damages, injunctive relief, and attorney fees and costs, based on claims of libel, breach of contract, and intentional and negligent interference with prospective economic advantage. In January 2009, they amended their pleading to add a cause of action for misappropriation of trade secrets.
According to the pleadings, UPI is an internationally recognized placement agency, headed by Navarro, that recruits and places foreign teachers with school systems in the United States. For a fee, UPI helps foreign teacher candidates to obtain licenses and to meet the various other requirements that federal immigration law and local school systems impose upon those who seek positions in the United States.
The amended complaint alleges that in November 2008, Cruz, a teacher candidate from the Philippines who had contracted with UPI for its placement services, was the author of a “blog” addressed to Philippine teachers based in the United States. The blog-“Pinoy Teachers Hub”-was alleged to contain false and defamatory statements accusing Navarro and UPI of fraudulent business practices and crimes. A portion of the blog entitled “Why We Need To Act Together, ” addressed as “An open letter to our fellow Filipino Migrant Teachers, ” allegedly asserted that UPI “is defrauding us with our hard-earned wages”; that it overcharges and requires premature payment of placement fees and commissions in violation of its contracts and of Philippine law; that it has instituted immoral and unfair schemes, bullying, and intimidation; that “we are treated virtually as modern slaves”; that some teachers have been duped into believing a job was waiting for them when it was not; and that Navarro and UPI have “unlawfully opened our SS document.” The amended complaint alleges that the blog and the defamatory statements are knowingly false, and that they were intended to be read by a substantial number of teachers and competitors of UPI, resulting in damage to Navarro’s feelings and the plaintiffs’ reputations, and depriving them of profits they otherwise would have enjoyed.
On January 4, 2009 Cruz brought an anti-SLAPP motion-a special motion to strike the complaint, and for attorney fees, pursuant to section 425.16. The motion contended that the complaint’s allegations are directed against alleged acts in furtherance of the right of free speech in connection with an issue of public interest, and that the plaintiffs could not establish a probability of prevailing.
Section 425.16 provides in relevant part: “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 the 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).)
The plaintiffs opposed the motion on the ground that the blog did not involve the right of free speech in connection with issues of public interest, and therefore is not subject to section 425.16’s terms. Contending that the anti-SLAPP motion therefore had failed to meet its threshold burden, they offered no evidence to demonstrate a probability that the action would prevail on the merits. Notably, they offered nothing to contradict Cruz’s testimony that she was neither an author of nor a contributor to the blog.
The Superior Court heard and granted the anti-SLAPP motion on April 14, 2009. Its written order holds that the blog, posted on an open internet forum and addressed to other Filipino Migrant Teachers participating in the plaintiffs’ program, involved matters of public interest because it was also viewable by other prospective foreign teachers and the public at large, and was arguably of interest on subjects such as immigrant exploitation, fraud, and substandard housing. The order holds that by failing to show any probability of prevailing on the merits, the plaintiffs failed to meet their burden of proof under section 425.16. And it holds that Cruz is entitled to attorney fees and costs under section 425.16, subdivision (c).
Cruz moved for an award of attorney fees and costs in the amount of $31,645.82, supported by time records. Navarro opposed the fee motion as untimely, excessive, and undocumented. On June 9, 2009 the trial court granted the requested fees and costs in their entirety.
Navarro and UPI appeal from the trial court’s rulings. Their appeal challenges the anti-SLAPP ruling on grounds that the order violated their due process rights, and that relief under section 425.16 was improperly granted because the blog did not address an issue of public interest. We find no merit in these claims, and therefore affirm the rulings.
An order granting or denying a special motion to strike under section 425.16 is an appealable order. (§ 425.16, subd. (i).)
Navarro and UPI appeal also from the award of fees and costs on the ground that even if the anti-SLAPP ruling was correct, the trial court erred by awarding all fees incurred on Cruz’s behalf rather than limiting its award to only those fees incurred in connection with the anti-SLAPP motion. We determine that this contention might be well taken.
DISCUSSION
Standards of Review
The question whether the trial court correctly ruled that section 425.16 applies in this case is the subject of independent review on appeal. (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 906; HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212 [orders granting anti-SLAPP motions are reviewed de novo].) We review the award of attorney fees under the deferential abuse of discretion standard. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1130; Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1322.)
Section 425.16 required a determination whether the statements challenged by the complaint arise from protected activity.
An anti-SLAPP motion under section 425.16 requires the trial court to engage in a two-step process. First, the court determines whether the defendant has made a prima facie showing that the challenged claim arises from protected activity that is within the statute’s definition. If that threshold is met, the court then determines whether the plaintiff has demonstrated a probability that it will prevail on the claim. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)
The protected activity that is required in order to satisfy the first prong of this test is an act in furtherance of a person’s right of free speech in connection with a public issue, as set forth in subdivisions (e)(3) or (e)(4) of section 425.16. (Section 425.16, subd. (e)(1).) The plaintiffs charge that the relevant statements in this case were blog entries made on the internet, which were statements made in a public forum, as plaintiffs concede. (See ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999.) The key issue with respect to the applicability of the anti-SLAPP statute therefore is whether the challenged claims were made in connection with issues of public interest within the meaning of section 425.16, subdivision (e).
Subdivision (e)(3) provides in relevant part that acts in furtherance of a person’s free speech rights include statements “made in a place open to the public or a public forum in connection with an issue of public interest.” Subdivision (e)(4) encompasses “any other conduct in furtherance of... the constitutional right of free speech in connection with a public issue or an issue of public interest.”
The blog’s challenged statements were made in connection with issues of public interest.
Plaintiffs contend that the trial court erred by determining that the blog and the statements on which the plaintiffs’ lawsuit rests arose from protected activity. The blog’s statements, they contend, were not made in connection with an “issue of public interest, ” and therefore do not come within subdivision (e)(3) of section 425.16.
Section 425.16’s public interest requirement was not met, plaintiffs argue, because the blog’s subject and statements involved only private transactions and disputes among members of a very limited group, and because they were not of widespread interest to the public at large, or even if they were, they addressed only the parties’ private dispute rather than any specific public issue. Those arguments are belied by plaintiffs’ own characterization of the blog, however, as well as by the blog itself.
According to the amended complaint, the blog was posted on an internet forum that was available to the public at large. The blog’s initial statement welcomes comments and posts sharing the stories and experiences of its readers-all “pinoy teacher[s] based in the United States, ” not just those who had contracted with UPI, or who had disputes with UPI. And the title of the blog entry that plaintiffs alleged to be wrongful is an open letter-“Why We Need To Act Together”-addressed not just to the merits of a particular act or dispute, but to ongoing controversies and future actions of importance to its intended audience.
Plaintiffs have not identified anything in the record that shows the number of teachers who had contracted with or had disputes with UPI, or the potential size of the blog’s audience.
The amended complaint alleges that the blog was intended to address not just “the relationship between UPI and other clients covered by like agreements, ” but it also identifies the blog and its statements as wrongful specifically because they are not directed just to the limited group of foreign teachers who had contracted with UPI. According to plaintiffs, they are “seen and read by a substantial number of teachers, ” and they were intended to disrupt UPI’s potential future “prospective economic relationships” with others-presumably those who are not yet foreign teachers who have contracted with UPI. And according to plaintiffs, “when taken as a whole, ” the blog and its statements imply “that persons should not do business with the plaintiffs, ” again indicating that the blog’s audience includes potential teachers who have no current contractual relationship or dispute with UPI.
As the trial court noted, the blog addressed issues ranging beyond the specific wrongs and breaches claimed to have been suffered by its writer, on issues such as immigrant exploitation, fraud, and substandard housing. These issues would affect and would be of interest to many present and future immigrant teachers-including not just those who had allegedly been victimized, and not even just those who had actually contracted with UPI, but also those who might be considering becoming immigrant teachers through UPI or other such agencies. And the blog expressly sought to rally others to support changes in the claimed practices and in the contractual and other requirements that foreign teachers believed they were forced to accept, and encouraging others “to ‘stand up’ to pursue a common goal” involving an ongoing controversy.
These are among the characteristics that distinguish this case from the decisions on which the plaintiffs rely. (E.g., Rivero v. American Fed. Of State, County & Mun. Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 924 [protected activity involving dispute relating to supervisor of just eight employees found not to be issue of public interest]; Dyer v. Childress (2007) 147 Cal.App.4th 1273, 1280 [public interest is not shown where statements are confined to “parochial particulars” of parties’ dispute rather than public interest issues that might be implicated]; World Financial Group, Inc. v. HBW Ins. & Financial Services, Inc. (2009) 172 Cal.App.4th 1561, 1573 [statements directed solely at specific business practices, without addressing any ongoing controversy or potential public interest issues, does not satisfy first prong under section 425.16.]; Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 111 [same]; Century 21 Chamberlain & Associates v. Haberman (2009) 173 Cal.App.4th 1, 10 [demand for arbitration of specific negligence claim involves only private dispute, not potential public interest relating to arbitration].)
Thomas v. Quintero (2005) 126 Cal.App.4th 635, is particularly instructive, as the trial court noted. In Thomas, the court found that a tenant’s distribution of leaflets constituted protected activity with respect to issues of public interest, notwithstanding that the protest concerned a dispute with his landlord over eviction and involved only a limited audience, because the protest activities “‘were not an end to themselves, ’” but sought public involvement in an “‘ongoing controversy, dispute or discussion....’” (Id. at p. 661.) Here, too, the blog attributed to Cruz addressed the parties’ private disputes in the context of an ongoing controversy about the conduct of UPI, the sorts of conduct suffered by other present and future foreign teachers, and the social impact of such conduct on others. It also constituted a call to future action, specifically seeking its audience’s participation in the ongoing discussion and involvement in the ongoing controversy.
These factors satisfy the requirement that the acts and conduct charged in the complaint involve issues of public interest within the meaning of section 425.16. (See, e.g., Ruiz v. Harbor View Community Assn. (2005) 134 Cal.App.4th 1456, 1467-1470 [communication to single reader leading to ongoing controversy concerning homeowners’ association governance involves issue of public interest]; Terry v. Davis Community Church (2005) 131 Cal.App.4th 1534, 1547-1550 [church governing body’s allegedly false accusation of sexually predatory conduct, read by at most 100 people, constitutes statement in public interest because reported actions gave rise to ongoing discussion and encouraged public participation in matters of public significance]; Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 898-900 [statements on internet web site about allegedly incompetent broker constitute issue of public interest where it constitutes “cautionary tale” providing consumer protection information to assist others with similar problems]; Carver v. Bonds (2005) 135 Cal.App.4th 328, 343-344[allegedly defamatory newspaper article about medical practitioner’s claimed misrepresentations involve issue of public interest where information would assist others in choosing doctors]; Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479 [homeowners’ association newsletter concerning association governance constitutes matter of public interest]; Macias v. Hartwell (1997) 55 Cal.App.4th 669, 674-675 [statements designed to persuade union members to vote against candidate in union election constituted matters of public interest]; see also DuCharme v. International Broth. of Elec. Workers, Local 45 (2003) 110 Cal.App.4th 107, 119 [issues of interest to members of a particular community, in context of ongoing controversy, debate, or discussion within that community, may constitute issue of public interest under section 425.16].)
The blog’s message in this case fits well within the definition of a discussion of issues of public interest with its audience. The trial court therefore correctly determined that section 425.16, subdivision (e)(3), applies.
The trial court’s reliance on subdivision (e)(3) of section 425.16 did not deprive the plaintiffs of due process of law.
Plaintiffs also claim to have been deprived of due process of law by the trial court’s ruling that the challenged claim arises from protected activity under subdivision (e)(3) of section 425.16, while the anti-SLAPP motion relied on subdivision (e)(4) of section 425.16. They offer no authority for that proposition, and it is without merit.
As relevant to this case, subdivision (e)(3) applies to statements or writings made in connection with an issue of public interest; subdivision (e)(4) applies to conduct that is done in furtherance of a free speech right in connection with a public issue or issue of public interest. Subdivision (e)(3) applies here, because the charged conduct constitutes written statements made in a blog-a writing. Subdivision (e)(4) is equally applicable, however, for the blog was just as plainly conduct done in furtherance of its author’s free speech rights. (See Wilbanks v. Wolk, supra, 121 Cal.App.4th at pp. 897-898; Carver v. Bonds, supra, 135 Cal.App.4th at p. 342 [subsections (e)(3) and (e)(4) of section 425.16 are not mutually exclusive; both may apply where conduct constitutes communications made in public forum].) The distinction between subdivisions (e)(3) and (e)(4) is in subdivision (e)(3)’s requirement of a public forum, which is not an issue here. (Terry v. Davis Community Church, supra, 131 Cal.App.4th at p. 1545.)
The issue in this appeal therefore was the same under both subdivisions (e)(3) and (e)(4): whether the blog concerned issues of public interest. Plaintiffs do not say how they were misled by the identification of subdivision (e)(4) rather than subdivision(e)(3) in the anti-SLAPP motion’s notice of motion. We conclude they were not. After all, the memorandum of points and authorities in support of the anti-SLAPP motion argued its merits under subdivision (e)(3), rather than subdivision (e)(4), and plaintiffs’ opposition specifically noted the potential applicability of subdivision (e)(3). The trial court acted well within its discretion in excusing and ignoring the claimed defect.
The motion was sufficient to provide plaintiffs with notice of the grounds for the requested relief, and the trial court’s reliance on either ground would have been sufficient to invoke the relief provided by section 425.16. Because the plaintiffs made no showing of a probability that their action against Cruz will prevail, the order granting the special motion to strike therefore is affirmed.
Whether the trial court abused its discretion by awarding the requested attorney fees is unclear from the record.
Navarro and UPI appeal from the attorney fee award on two grounds. They first contend that the fee award should be reversed because the anti-SLAPP motion should not have been granted in the first instance. This ground we reject because we affirm the order granting the anti-SLAPP motion.
Plaintiffs also contend that in any event the trial court abused its discretion by awarding the requested fees, because the request apparently included fees for time spent on matters other than the anti-SLAPP motion alone. Based on the record before us, we conclude that the plaintiffs’ second ground has some merit.
A prevailing defendant on a special motion to strike is entitled as a matter of right to recover attorney fees. (§ 425.16, subd. (c); Ketchum v. Moses, supra, 24 Cal.4th at p. 1131.) Plaintiffs concede that prevailing defendant on a special motion to strike is entitled as a matter of right to recover attorney fees under section 425.16, subdivision (c). They argue, however, that a successful defendant is entitled to recover the fees incurred only with respect to the anti-SLAPP motion. The award in this case should be reversed, they contend, because it includes fees incurred with respect to proceedings in the trial court other than just the anti-SLAPP motion.
The decision in Lafayette Morehouse, Inc. v. Chronicle Publishing Co., supra, 39 Cal.App.4th at p. 1384, held that the prevailing party on an anti-SLAPP motion was not entitled to recover attorney fees incurred with respect to proceedings other than in connection with the anti-SLAPP motion itself (although it is not clear from the opinion what was the nature of the other matters for which fees had been requested). Our Supreme Court recited that holding with approval, in dictum, in S.B. Beach Properties v. Berti (2006) 39 Cal.4th 374, 381; however there the context was quite different from what is involved here. The holding there was that fees could be recovered only if the anti-SLAPP motion was filed before the action’s voluntary dismissal by the plaintiff. (Id. at p. 383.)
Some proceedings in this case may not have been devoted directly to the anti-SLAPP motion itself. For example, simultaneously with her anti-SLAPP motion, Cruz moved to quash a subpoena seeking the identity of the person who posted the blog on Google, or in the alternative, to stay the subpoena pending the outcome of the anti-SLAPP motion. Although the portion of the affected time is relatively small (in the area of perhaps 10 percent), there is some indication that the fees requested on Cruz’s behalf might represent some time incurred with respect to the motion to quash, and perhaps some other services as well.
The day after the complaint was served in this action (and five days after the complaint was filed), plaintiffs filed an ex parte motion for OSC and temporary restraining order seeking removal of the blog. And a few months later the plaintiffs’ attorney apparently moved to be relieved as counsel. However there is no indication in the record that Cruz or her counsel were involved in either of these events, or that any of the claimed fees or costs were attributable to them.
The fee motion was supported by counsel’s declaration that the fees were incurred “defending this case by preparing the anti-SLAPP motion, protecting my client’s right to a speedy hearing on the motion, responding to the opposition papers of Plaintiffs, and preparing for and appearing at the hearing on the motion, ” as well as for time spent preparing the fee motion, responding to the opposing papers, and attending the fee hearing. Cruz’s counsel undoubtedly would contend that this representation was justified because all activities for which his time was incurred were essential to the prosecution of the anti-SLAPP motion, and that Cruz is entitled to reimbursement of her fees with respect to them. The record is not sufficient, however, for us to determine whether that contention (if and when it might be asserted) would be well-taken.
DISPOSITION
Because we find that Cruz is the prevailing party in this appeal, she is entitled to recover her fees and costs attributable to this appeal. Although we are reluctant to add to the burdens on the trial court and counsel in this case, we nevertheless find that we must reverse and remand the fee award so that in the course of its determination of the fees and costs to which Cruz is entitled for this appeal, the trial court may also determine whether, and the extent (if any) to which, the $31,645.82 awarded as fees and costs for the trial court proceedings were not incurred in connection with or necessary to the anti-SLAPP motion. In all other respects the judgment is affirmed.
We concur: MALLANO, P. J. ROTHSCHILD, J.