Opinion
A145599
04-10-2018
RICHARD SINGER et al., Cross-complainants and Respondents, v. ALICE TSE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. CGC14537549)
Cross-defendant Alice Tse (Tse) appeals from an order denying her special motion to strike. Cross-complainants Patricia Singer and Richard Singer (Singer) alleged, in their third cause of action, that Tse falsely represented to others that Singer owned and controlled property alleged to be in "abhorrent" condition, when in fact, Tse was the sole owner and manager of the property. Tse filed a special motion to strike that cause of action, arguing her statements were "protected activity" under Code of Civil Procedure section 425.16. The trial court concluded Tse did not carry her burden of proving that the statements were "act[s] in furtherance of [Tse's] right of . . . free speech" as defined in section 425.16, subdivision (e). We conclude the motion was properly denied.
We shall refer to Richard Singer individually as "Singer" and Patricia Singer and Richard Singer collectively as "the Singers."
All references to statutes are to the Code of Civil Procedure.
A. Legal Principles Governing a Special Motion to Strike
"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 Constitution 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).)
A special motion to strike is also referred to as an "anti-SLAPP" motion, which means a motion against a "strategic lawsuit against public participation." The acronym was coined by Penelope Canan and George W. Pring, professors at the University of Denver (Canan & Pring, Strategic Lawsuits Against Public Participation (1988) 35 Soc. Probs. 506). (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57, fn. 1 (Equilon Enterprises).)
Our Supreme Court has outlined the two steps involved in applying the anti-SLAPP statute: " 'First, the court decides whether the [cross-]defendant has made a threshold showing that the challenged cause of action is one "arising from" protected activity. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then must consider whether the [cross-complainant] has demonstrated a probability of prevailing on the claim.' [Citation.]" (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 819-820 (Oasis West).) Only a cause of action that arises from protected speech and lacks even minimal merit is subject to being stricken under the anti-SLAPP statute. (Id. at p. 820.)
"We review an order granting or denying a motion to strike under section 425.16 de novo." (Oasis West, supra, 51 Cal.4th at p. 820.)
B. Protected Activity or Speech
A claim is subject to the anti-SLAPP statute under section 425.16 if it is an " 'act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue.' " These acts are enumerated as follows: "(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) 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." (§ 425.16, subd. (e).) It is the moving party's burden to show that the alleged activities or statements supporting the challenged cause of action arose out of any of these forms of protected activity. (PrediWave Corp. v. Simpson Thacher & Bartlett LLP (2009) 179 Cal.App.4th 1204, 1218-1219.)
C. Factual Background
The factual history underlying this appeal is somewhat complex, but we need not review it in its entirety. Only the following facts are relevant to the dispute before us.
According to Singer: A building located at 1300 Webster Street in Oakland (the Property) was owned by Prize Group, LLC, which in turn was owned by a trust of which Singer was the trustee. In early 2011 Singer pled guilty to criminal charges of solicitation to commit arson related to the Property. Singer was incarcerated from June 2011 to December 2012, was released to a halfway house until May of 2013, and thereafter was on probation. While living at the halfway house Singer worked for Innovistech Realty, Tse's real estate company.
In March 2011, before Singer was sentenced, all of the membership interest in Prize Group, LLC was sold to another trust, of which Tse was a trustee. From and after March of 2011, Singer had no ownership interest in, or managerial control over, the Property. Since the date that Tse's trust purchased the Property, the owners have failed to pay property taxes or maintain insurance, and the Property has fallen into "abhorrent" "slum-like" conditions.
Singer financed a portion of the Prize Group, LLC purchase price, taking two promissory notes. One of the promissory notes was secured by another property (the Julian property). The note was not timely repaid and Singer commenced foreclosure proceedings against the Julian property.
Before issuing a notice of default Singer spoke with Tse's attorney to determine whether a resolution regarding the overdue note could be reached. During that call, the attorney threatened to create problems with Singer's probation by claiming that Singer's employment with Innovistech was a "sham" unless Singer agreed to accept a lesser amount than was due on the note. When Singer objected, the attorney stated he would characterize the objection as a threat against him and his client, and asked rhetorically whether the probation officer would believe Singer or " 'an attorney and officer of the court.' "
Thereafter, according to Singer, continuing in the attempt to coerce Singer to accept a discounted sum, Tse told a reporter and a blogger multiple times that "she was buying properties for [Singer]." Singer claims that Tse and others have "spread falsehoods" to the effect that Singer maintains an interest in the Property and "is responsible for the abhorrent, criminal and unsafe conditions" at the Property.
D. Procedural History
Tse sued Singer and others to stop the foreclosure on the Julian property, alleging various causes of action, including fraud. The court issued an injunction halting the foreclosure proceedings.
The Singers filed a cross-complaint, alleging, among other claims, a cause of action for libel and slander. They alleged that Tse and related persons knowingly falsely stated to news reporters and bloggers that Singer remains the owner and exercises control over the Property, and that he is responsible for the abhorrent conditions which have existed since the sale of the Property to Tse. The Singers further alleged that the statements were made for purpose of securing leverage against Singer and to deflect attention by governmental agencies for the uninhabitable conditions on the Property. Singer alleged damage to his reputation; the Singers also alleged malice and sought punitive damages.
Tse then filed a special motion to strike that cause of action, pursuant to section 425.16. In support of the motion, Tse filed a declaration denying that she stated Singer owned the Property or was responsible for the conditions on the premises. Rather, "[t]he only thing [she has] told a news reporter about Richard Singer was that [she] had a new fraud case against [him]," referring to the above-described lawsuit. Tse further averred that she never spoke with the reporter, but only left a voicemail message, and believes that the quote in the news article "reflects the basic substance of the information [she] provided...in [her] message."
Attached to Tse's declaration was a news article from SF BayView, entitled "Mass evictions at Oakland's Empyrean Towers." The article described Singer's history with the Property, his conviction, and earlier litigation regarding habitability issues at the Property. The article then reported the following: "[A]ccording to public records with 'corporation wiki,' Richard Singer has partnered with real estate broker Alice Tse to own and manage the building through Empyrean Towers LLC and Innovistech Realty Co. [¶] As a real estate broker, Alice Tse has been buying properties for Singer for a number of years and she called me a few times around the beginning of 2014. [¶] Over the phone Alice Tse stated a few times that she was buying properties for Singer, and that she was very concerned about Singer's activities. Then on Feb. 21, 2014, I received a strange email from Alice Tse [] that said: 'I have a new fraud case committed by Richard Singer who attempted to burn down [the Property]. Please call me....' [¶] I tried calling a few times but Alice did not respond to my call, and I wondered what happened. Only lately did I learn that she is partners at the Empyrean Towers with Richard Singer." The article then went to describe the plight of various tenants who were facing eviction at the Property and concluded with a statement from the "[e]viction attorney" who said she had "no comment regarding [the] many questions about 20 tenants or more allegedly facing eviction by Richard Singer and Alice Tse."
Empyrean Towers is the Property.
In her memorandum in support of the motion to strike Tse argued, in essence, that she did not make the statements alleged in the cross-complaint, but only told the reporter she had a new fraud claim against Singer; that statement, she asserted, was protected as one made in connection with an official judicial proceeding. Tse argued, additionally, that Singer could not show a probability of prevailing on his claim. According to Tse, she "never stated that [Singer] still had ownership or control of [the Property] or was responsible for the conditions of the property since it was transferred, [and therefore Singer] cannot produce competent, admissible evidence to support this allegation." Finally, Tse contended that her statement about having a fraud claim against Singer was true and therefore Singer could not prevail.
Tse's motion to strike was denied. The court ruled that statements made by Tse regarding the litigation (the fraud claim) were not the basis of the claim alleged in the third cause of action, and so, Singer's defamation cause of action was not shown to arise out of protected activity.
E. Argument on Appeal
On appeal, Tse makes a slightly different argument. She contends the trial court erred in focusing on what was alleged in the complaint as the basis for the libel and slander claim instead of what she claims she actually said. From that premise, she argues (1) that she "never actually made the statements Richard Singer alleges in his Cross-Complaint" and (2) if she stated she was "buying properties for Mr. Singer" and "was very concerned about his activities," those statements were made only "in specific reference to her recently filed fraud action...." Whether or not it can be proved that she made the alleged statements, Tse's analysis is without merit.
The contention that the trial court must focus on Tse's version of the facts rather than on the allegations of the complaint is feckless. As its plain language makes clear, the anti-SLAPP statute applies to "[a] cause of action against a person" that arises out of protected speech activity (§ 425.16, subd. (b)(1)); that is, it applies to "allegations of activity protected by the statute." (Baral v. Schnitt (2016) 1 Cal.5th 376, 381 (emphasis added); see also id. at pp. 381-382 ("Typically, a pleaded cause of action states a legal ground for recovery supported by specific allegations of conduct by the defendant on which the plaintiff relies to establish a right to relief.") Tse "cannot meet [her] threshold showing in step one by pointing to the lack of evidence that the statements were made . . . ." (City of Costa Mesa v. D'Alessio Investments, LLC (2013) 214 Cal.App.4th 358, 372.) "The question is what is pled—not what is proven." (Comstock v. Aber (2012) 212 Cal.App.4th 931, 942.)
Tse argues that language in Navellier v. Sletten (2002) 29 Cal.4th 82 (Navellier) supports her theory because it states that the anti-SLAPP statute focuses "not on the form of the plaintiff's cause of action but, rather, the defendant's activity that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning." (Id. at p. 92.) But the court in Navellier was not distinguishing between the allegations of a complaint and the defendant's own version of the facts. Rather, the court was addressing the question of whether a breach of contract cause of action could be the subject of an anti-SLAPP motion. To decide that issue, the court in Navellier looked at the allegations of the complaint to determine whether the acts alleged were or were not protected, stating, "Plaintiffs' cause of action for breach of contract is grounded in allegations that [defendant] filed counterclaims in the federal action and that his 'filing of said . . . counterclaims and assertion that the Release was invalid directly and proximately damaged [plaintiffs]. . . .' " (Navellier, supra, 29 Cal.4th at p. 89.)
Additionally, Tse's claim that her statement (if made) about buying properties for Singer was made only in connection with her fraud claim, is specious on its face. Singer alleged in his cross-complaint that Tse (or persons acting under her direction) falsely stated to news reporters and bloggers that Singer still owns and has control over the Property, and that he is responsible for the abhorrent conditions there. Tse's complaint against Singer, in contrast, relates entirely to Singer's attempts to collect on promissory notes and to foreclose on property securing one of the promissory notes. There are allegations of fraud (misrepresentation of the amounts due on the loans), wrongful foreclosure (violation of Civ. Code, §§ 2924, 2924f), breach of contract and violation of the Unfair Competition Law. There are no allegations pertaining to ownership or control of the Property or to Tse buying properties for Singer.
As Singer correctly argues, the first step in the analysis of an anti-SLAPP motion looks only at the conduct alleged as the basis for plaintiff's cause of action, viz., "the act or acts of which the plaintiff complains" to determine whether it is protected activity. (Equilon Enterprises, supra, 29 Cal.4th at p. 67; and see Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188, citing City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79 [whether anti-SLAPP statute applies is determined by the "principal thrust or gravamen of the plaintiff's cause of action"]; Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062 ["A claim arises from protected activity when that activity underlies or forms the basis for the claim"].) The question of whether the plaintiff—here, the cross-complainant—can produce evidence supporting the allegations comes into play only at the second step of the anti-SLAPP analysis. "In its motion, the defendant must make a threshold showing that the plaintiff's cause of action arises from the defendant's free speech or petition activity, as specified in the statute. (§ 425.16, subds. (b), (e).) The burden then shifts to the plaintiff to establish a probability of prevailing on the claim. [Citation.]" (Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1547, italics added.) Tse has not made that threshold showing here because the challenged statements do not fall within any of the categories of protected speech defined in section 425.16, subdivision (e). (See Navellier, supra, 29 Cal.4th at p. 88 [moving party meets its burden to show that the challenged cause of action is one arising from protected activity by demonstrating that the act underlying the plaintiff's cause fits one of the categories spelled out in section 425.16, subd. (e)].)
Tse contends that her statements about her fraud claim against Singer and "comments to the press regarding . . . Singer's real estate malfeasances/real estate fraud should be considered protected speech on a matter of public interest." As a theoretical matter we do not disagree, but Singer did not allege that Tse made any false statements about his real estate malfeasances or fraud; he alleged that Tse represented that Singer maintained ownership and control over the Property, and was responsible for its deplorable condition. Tse categorically denies making such statements, and asserts these are only "false assumptions" or "misconception[s]" Singer had about what Tse said to the reporter. Again, this is a question of proof, which is considered under the second prong of the anti-SLAPP analysis, only if there is an initial determination that the acts alleged are protected activity.
Tse's next arguments are equally unavailing. First, she contends that her "statements/comments to [the] news reporter . . . that she had a new fraud case against Richard Singer" are protected under section 425.16, subdivision (e)(4) as statements made in connection with a public issue because of "Singer's history and notoriety in the Bay Area." Next, she argues that her statements "that she had a real estate transaction history with Mr. Singer and that she was 'very concerned about his activities' serve the purpose of informing and warning the public about Mr. Singer's potential untrustworthiness." Even assuming these contentions are viable, they are irrelevant because (again) these are not the representations that form the basis of Singer's libel claim, which are that, in conjunction with Tse, he still owned and controlled the Property.
In the final section of her brief, Tse actually addresses the alleged defamatory statements that Singer still had ownership and control over the property. First, she argues the statements are protected because they are "substantially connected to an official judicial proceeding," i.e., the action filed by Tse. Tse contends that her complaint involves fraud and contract claims on liens Singer holds against the Property and other properties, and therefore "Mr. Singer's ownership interest in [the Property] is directly at issue in the litigation. . . ." This mischaracterizes both the law and the subject matter of Tse's litigation.
To begin with, it is not clear from the complaint that there is any lien against the Property. The complaint alleges, as background, that Tse purchased the Property from Singer, that Tse executed a promissory note in favor of Singer and a title company, and that the note was "secured by a deed of trust with Singer as beneficiary." The allegation does not identify what property secured the deed of trust, but states only that that deed of trust was recorded in San Francisco. Tse further alleged that the deed of trust for the Property was also secured by two other properties. The charging allegations all pertain to Singer's alleged fraud, breach of contract and wrongful foreclosure on property in San Francisco, in an attempt to collect on the promissory note, which was in default. No issue is raised or implicated as to Singer's ownership or control of the Property.
The Property is located in Oakland, not San Francisco.
As to the law, a deed of trust conveys only a security interest in property; it conveys no ownership or control over the property. "Despite the existence and validity of the secured interest created by a deed of trust, the trustor-debtor retains all incidents of ownership with regard to the real property, including the rights of possession and sale. [Citation.]" (Jenkins v. JP Morgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 508, disapproved on other grounds by Yvanova v. New Century Mortg. Corp. (2016) 62 Cal.4th 919, 939, fn. 13; see also Shuster v. BAC Home Loans Servicing, LP (2012) 211 Cal.App.4th 505, 510.) The lien allegedly held by Singer on the Property thus does not implicate any ownership interest.
Tse also argues that her statements were "in connection with an official judicial proceeding" because they were made three days after she filed the complaint. Tse cites no authority for the proposition that a statement made after the filing of a complaint is made "in connection with" that judicial proceeding, and we have found none. It is not the timing but the content of the statement that controls. A statement is protected if it involves "the subject of the dispute." (Cf. Rohde v. Wolf (2007) 154 Cal.App.4th 28, 36.)
Finally, despite having repeatedly denied she ever stated or insinuated that Singer still owned or controlled the property or was responsible for its condition, and despite having affirmatively asserted that she is and has been the owner of the Property—and that Singer has relinquished ownership and control—since March 2011, Tse argues that the alleged statements are protected because if they were true, they would be a subject of public interest. This argument was forfeited because it was not adequately raised or developed below. It was merely referenced in a single phrase in a paragraph describing Singer's sordid history with the Property, the press coverage of that story since 2011, and unspecified claims of other incidents of fraud, malfeasance and landlord tenant disputes. Tse argued in that context that "comments [made] to the press [about] Richard Singer's previous and/or continued involvement [with the Property] and/or any other real estate malfeasances/fraud or landlord/tenant disputes should be considered protected speech on a matter of public interest (italics added)" because "they serve to inform the community and other bay area property owners about the potential risks of doing business with Richard Singer—the owner of multiple properties in the region."
In any event, even if the argument had been properly preserved, we would reject it. Tse contends that the alleged defamatory statements fall within two additional categories of protected activity set forth in section 425.16, subdivision (e). The first of these applies to "any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest." (§ 425.16, subd. (e)(3).) The second applies to "any other conduct in furtherance 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." (§ 425.16, subd. (e)(4).) Thus, we must determine whether the statements alleged here were "in connection with an issue of public interest," the element common to both categories.
Tse properly conceded at oral argument that the allegations in this case do not implicate the constitutional right to petition.
Tse asserts that her alleged statements fall within the first of these categories because they were made in a public forum and "provide[] the public . . . information regarding a powerful organization that impacts their lives." Alternatively, she contends that regardless of whether they were made in a public forum, they fall within the second category because, in light of Singer's prior conviction of solicitation to commit arson, "the public would certainly have an interest in his current involvement with the property, and the risk this would potentially pose to the public." While Tse's position is not obviously untenable, we are ultimately unpersuaded.
We cannot determine whether the statements, which were allegedly made to "news reporters and bloggers," were made "in a place open to the public or a public forum." (§ 425.16, subd. (e)(3).) Tse argues that "comments that appear in Internet news sites and/or local newspapers are made in a 'public forum.' " We agree. (See Cross v. Facebook, Inc. (2017) 14 Cal.App.5th 190, 199 [websites accessible to the public are public forums for purposes of the anti-SLAPP statute]; Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1252 [postings on Facebook page and Instagram account and comments during radio broadcast were all made in a place open to the public or a public forum].) But as Tse conceded below, the cross-complaint does not allege that the statements were actually reported or reprinted in newspapers or on blogs or other online sites. Statements "made in a private setting" to a newspaper reporter during an interview, but that are not actually published, may not qualify. (Zhao v. Wong (1996) 48 Cal.App.4th 1114, 1131, overruled on other grounds in Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1123, fn. 10.) Because the public interest component is determinative, however, we need not decide this issue.
As Tse acknowledges, section 425.16 "does not provide a definition for 'an issue of public interest,' and it is doubtful an all-encompassing definition could be provided." (Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1132.) The numerous reported decisions on the subject are intensely fact-dependent and arguably difficult to reconcile. Nonetheless, we are able to distill the following governing principles from the cases.
First, the definition of "public interest" within the meaning of the anti-SLAPP statute "has been broadly construed to include not only governmental matters, but also private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a governmental entity." (Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479.) Examples include situations in which the subject of the statement or activity was in either "a person or entity in the public eye [citations], conduct that could directly affect a large number of people beyond the direct participants [citations] or a topic of widespread, public interest." (Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 924 (Rivero).) "Thus, a matter of concern to the speaker and a relatively small, specific audience is not a matter of public interest." (Weinberg v. Feisel, supra, 110 Cal.App.4th at p. 1132.)
Second, "simply because a general topic is an issue of public interest, not every statement somewhat related to that subject is also a matter of public interest within the meaning of section 425.16, subdivision (e)(3) or (4)." (Jackson v. Mayweather, supra, 10 Cal.App.5th at p. 1253.) "[T]here should be some degree of closeness between the challenged statements and the asserted public interest [citation]; the assertion of a broad and amorphous public interest is not sufficient [citation]." (Weinberg v. Feisel, supra, 110 Cal.App.4th at p. 1132.) "One cannot focus on society's general interest in the subject matter of the dispute instead of the specific speech or conduct upon which the complaint is based." (Grenier v. Taylor (2015) 234 Cal.App.4th 471, 481.) For example, in Dual Diagnosis Treatment Center, Inc. v. Buschel (2016) 6 Cal.App.5th 1098, the court held that while discussion of drug and alcohol rehabilitation services may well be an issue of public interest, the licensing status of a single rehabilitation facility—the subject of a newspaper article that defendant republished in a newsletter that was distributed to approximately 22,000 readers—was not. (Id. at pp. 1103-1104.) Similarly, in Olaes v. Nationwide Mutual Ins. Co. (2006) 135 Cal.App.4th 1501, the court held that while "the public interest in the fair resolution of claims of sexual harassment is undeniable," that general public interest "does not bring a complaint alleging defamation during a sexual harassment investigation into section 425.16's ambit." (Id. at p. 1510; see also Jackson v. Mayweather, supra, 10 Cal.App.5th at p. 1253 [collecting authorities].)
Third, "in 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.) There, plaintiff alleged that he was terminated from his employment as assistant business manager of a union, and that a defamatory statement about his termination was posted on the union website falsely stating that he had been removed from office for financial mismanagement. The court observed that while the statement presumably was of interest to the union membership, it was "unconnected to any discussion, debate or controversy." (Id. at p. 118.) Members of the local were not being urged to take any position on the matter, or indeed to take any action whatever. (Ibid.) Because the allegedly defamatory statement was not made in the context of any ongoing controversy, dispute or discussion, the court concluded, it was not entitled to the statute's protection. (Id. at p. 119.)
Here, these principles compel the conclusion that the alleged statements regarding Singer's ownership and control of the Property were not in connection with "a public issue" or "an issue of public importance." (§ 425.16, subds. (e)(3) & (e)(4).) First, the statements directly concerned a relatively small, specific audience—the tenants of the Property—rather than a large number of people. While the record does not reveal the precise number of tenants at the Property, there appears to be no dispute that it is a seven story multi-unit, low income residential building that was occupied by at most a few dozen tenants. The alleged statements concerning Singer's alleged responsibility for conditions at the Property directly concerned that relatively small group of tenants, which undermines Tse's position that they implicated a larger public interest. (See, e.g., Olaes v. Nationwide Mutual Ins. Co., supra, 135 Cal.App.4th at p. 1511 ["a dispute among a small number of people in a workplace does not implicate a broader public interest"]; Rivero, supra, 105 Cal.App.4th at p. 924 [union's statements concerning supervision of a staff of eight custodians by plaintiff, an individual who had previously received no public attention or media coverage, was "hardly a matter of public interest"]; compare Damon v. Ocean Hills Journalism Club, supra, 85 Cal.App.4th at p. 479 [statements regarding management of homeowners association of more than 3,000 individuals concerned public interest].)
Second, and relatedly, the ownership and management of the Property is not a subject of "widespread, public interest." (Rivero, supra, 105 Cal.App.4th at p. 924, italics added.) "There is no showing that [the Property] impacts, or has the potential to impact, a broad segment of society." (Dual Diagnosis Treatment Center, Inc. v. Buschel, supra, 6 Cal.App.5th at p. 1105.) Nor is there a sufficient "degree of closeness" between the challenged statements, which essentially accused Singer with being a slumlord responsible for substandard conditions at a single, small residential hotel, and the "broad and amorphous" topic of safe, habitable housing in Oakland, the topic of public interest articulated by Tse's counsel at oral argument. (See Price v. Operating Engineers Local Union No. 3 (2011) 195 Cal.App.4th 962, 972-973 [flyers which union and striking employees distributed in general manager's neighborhood were not made in connection with an issue of public interest where they did not mention the labor dispute and manager was not involved in collective bargaining process].)
Tse attempts to link the alleged statements to Singer's prior arson conviction, but the statements themselves made no mention of that conviction. Nor did they warn prospective tenants of the Property or the public at large of any risk that might be posed in that regard by his alleged continued ownership and management of the Property. For this reason, Tse misplaces her reliance on cases involving Internet postings on consumer-oriented websites. Courts have reasoned that such postings are directly connected to an issue of public concern because they provide information " 'in the nature of consumer protection information,' " such as a warning not to use the plaintiff's services. (Chaker v. Mateo (2012) 209 Cal.App.4th 1138, 1144; see also Piping Rock Partners v. David Lerner Associates (N.D. Cal. 2013) 946 F.Supp.2d 957, 969 [statement was "a warning to consumers not to do business with plaintiffs because of their allegedly faulty business practices"]; Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 898 ["Consumer information, . . . at least when it affects a large number of persons, also generally is viewed as information concerning a matter of public interest"].) In Grenier v. Taylor, supra, 234 Cal.App.4th 471, similarly, the court held that allegedly defamatory statements that accused the plaintiff pastor of molesting a child and misappropriating church funds were connected to an issue of public concern because, among other reasons, the speakers were "attempting to warn people away from attending the Church with [plaintiff] as the pastor," a situation "analogous to consumer protection information." (Id. at p. 483.) But the statements alleged here contained no such warning or other consumer protection information; rather, they asserted only that Singer had an ownership interest in the Property and was responsible for its current substandard conditions.
Tse's emphasis on the issue seems disingenuous, since she admitted on reply that she agreed to employ Singer in her real estate business following his release from prison (although she characterized that employment relationship as a "sham").
Third, there is no evidence in the record that would support the conclusion that there was any "ongoing controversy, dispute or discussion" regarding Singer's ownership or control of real property, in Oakland or elsewhere, to which the statements could have contributed. In Dual Diagnosis Treatment Center, Inc. v. Buschel, supra, for example, the subject newsletter republished an article stating that a rehabilitation facility for mentally ill persons was unlicensed. While the city had filed a lawsuit against the facility's owner about one week before the newsletter was disseminated alleging the facility was a public nuisance, there were no allegations concerning the licensing status of the facility, and no other evidence of an ongoing discussion, dispute or controversy on that topic. (6 Cal.App.5th at p. 1106.) Under the circumstances, the court concluded that while the statement "might be of interest to a limited group, such as potential clients, neighboring residents and businesses, and/or certain industry professionals," it did not address an issue of public interest under the statute. (Id. at pp. 1105-1107.) "To grant protection to mere informational statements, in this context, would in no way further the statute's purpose of encouraging participation in matters of public significance (§ 425.16, subd. (a))." (Du Charme v. International Brotherhood of Electrical Workers, supra, 110 Cal.App.4th at p. 118.)
Thus, under the circumstances presented here, the alleged statements regarding Singer's ownership and control of the Property and purported responsibility for its current conditions were not "in connection with an issue of public interest."
DISPOSITION
The order denying Tse's special motion to strike is affirmed.
/s/_________
Schulman, J. We concur: /s/_________
Reardon, J. /s/_________
Streeter, Acting P.J.
Judge of the Superior Court of California, County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.