Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, No. 37-2008-00098508-CU-BT-CTL John S. Meyer, Judge.
McDONALD, J.
From 1977 to 1979, Victor E. Willis was a lead singer in a popular singing group known as the "Village People" (hereafter Village People). Shortly after his association with the group ended, some of the remaining members formed Sixuvus, Ltd. Sixuvus obtained a license from the owner of the Village People trademark to hire and manage performers to continue performing live music using the Village People name and characters, and has booked numerous performances under that name during the last three decades.
In 2008, when the Hollywood Chamber of Commerce decided to present a star to the Village People on Hollywood's "Walk of Fame, " Willis wrote to the Hollywood Chamber of Commerce complaining that the current incarnation of the Village People should not receive the star because it was a "fake." When the ceremony nevertheless went forward, Willis allegedly sought to disrupt the ceremony. He also allegedly made oral and written threats to interrupt future live performances by the group, and to "[dry] up" their ability to book future performances.
As part of his attack on Sixuvus's business relationships and prospects, Willis wrote Sixuvus in November 2008 demanding that it cease and desist promoting the current group in a manner that would mislead or defraud the public into believing the current group is the "original and authentic" Village People. The letter, also sent to numerous existing and potential business partners of Sixuvus, threatened legal action against Sixuvus and any other party who assisted Sixuvus in promoting or holding out the current group as the "original and authentic" Village People.
Sixuvus filed an action against Willis alleging claims for interference with contractual relationships and prospective economic advantage, and unfair business practices. Willis, after answering and filing a cross-complaint against Sixuvus alleging various affirmative claims, moved to dismiss Sixuvus's complaint pursuant to Code of Civil Procedure section 425.16, commonly referred to as the anti-SLAPP (strategic lawsuit against public participation) statute. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57 (Equilon).) The trial court denied Willis's motion and this appeal followed.
All statutory references are to the Code of Civil Procedure unless otherwise specified.
I
FACTUAL AND PROCEDURAL BACKGROUND
Although Willis recites numerous facts purporting to show that the facts alleged by Sixuvus are false, we accept as true for purposes of our analysis the facts averred by Sixuvus (Freeman v. Schack (2007) 154 Cal.App.4th 719, 733), and only consider Willis's evidence to the extent it defeats as a matter of law the evidence submitted by Sixuvus. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269.)
The Village People
In the 1970's, Can't Stop Productions, Inc. (CSP) formed a music act it called the Village People. CSP owns the "Village People" trademark as well as the unique characters portrayed as part of the group that performs under that name. CSP hired Willis as a contract performer in 1977 to perform with the Village People. As part of his contract with CSP, Willis acknowledged he had no rights in or to the Village People name and that all rights to the name remained CSP's property.
The performers in the group changed over time and many of the persons who portrayed characters as part of the 1977 lineup were replaced by other performers. Willis, who portrayed the "police officer" character, left the group in 1979 and was replaced by Mr. Simpson.
In 1987, the performers formed Sixuvus to manage the business affairs of the Village People performers, and Mr. Weiss manages the day-to-day business affairs of Sixuvus. CSP licensed Sixuvus to use the Village People name and characters in performances in the United States and internationally.
Willis's Harassing Conduct
In 2005, more than 25 years after he separated from the group, Willis appeared at an event in San Francisco at which the Village People performed. He forced his way to the front, where a barricade separated the audience from the stage on which the Village People group was performing. The Village People's manager had to physically restrain Willis from climbing onto the stage. Willis was physically subdued by security personnel and, as they escorted him from the building, he verbally threatened the performers and pantomimed pulling a trigger on a gun while pointing at them.
In September 2008, Willis again appeared at an event featuring the Village People. The Hollywood Chamber of Commerce was holding a ceremony to present a star to the Village People on Hollywood's "Walk of Fame." Willis appeared, without invitation, in the costume associated with the Village People's "police officer" character, and was carrying a realistic looking pistol. Willis advertised himself as the "original" lead singer and set up a boom box that played the songs on which he had been the lead vocalist. Security personnel positioned themselves between Willis and the podium at which the ceremony would occur, and at one point physically blocked Willis when he tried to approach the podium.
In mid-October 2008, while apparently trying to arrange to serve a lawsuit on Sixuvus that Willis's wife had filed against numerous parties, Willis's wife (acting as his legal representative) left three voicemail messages for Mr. Weiss. One message stated that if some arrangement satisfactory to Willis was not reached, Sixuvus would be faced with multiple lawsuits it would have to pay to defend. A second message stated that Sixuvus "better enjoy this last year, as the six Village People on that stage, " because "I guarantee you this will be your last year faking it... [You're] finished." The third message threatened to embarrass the group by serving them with her lawsuit by "throw[ing] six copies of the lawsuit [while they were performing in Las Vegas] right in front of the fans and for the world to see [and] it's going to be in the newspaper the next day [because] I'm going to make sure a reporter is there."
This lawsuit, filed by Willis's wife in propria persona, claimed the Hollywood Chamber of Commerce violated the Corporations Code and the "Walk of Fame Nomination Form and Procedures" in the decisionmaking process by which it decided to award a star to the Village People. Although Sixuvus is named as a party, our review of that action does not clarify which of the asserted claims, if any, targeted Sixuvus in that action.
In November 2008, Willis told Sixuvus that he had "every [intention] of drying up your shows." Earlier that month, Willis had sent a "cease and desist" letter to Sixuvus accusing it of misleading and defrauding the public in the way it promoted its concerts because Sixuvus promoted itself as the "original" Village People when the current members were not the "original" Village People. Willis warned that "registered trademarks used for fraudulent purposes are legally prohibited" and, unless Sixuvus provided a disclaimer at concerts that they were not the "original" Village People, Sixuvus would be continuing the fraud, and he threatened legal action if Sixuvus did not "cease and desist." Willis finally stated he intended to file an action for damages against Sixuvus for the "unauthorized use" of Willis's voice and image to promote their concerts, and that Willis intended to name any major booking agency or promoter who knew or should have known the use of Willis's voice and image was unauthorized. Willis's letter was copied to numerous third parties with whom Sixuvus had done business and expected to continue to do business. Sixuvus experienced a substantial drop in bookings following Willis's letter.
In the same letter, Willis stated he would also force the group "to have to spend all of their ill-gotten financial gains on lawyers until all of their ill-gotten financial gains are gone. [¶] [Let's] see who has the most money to throw around on lawyers." Willis's wife, representing Willis in this dispute, holds a juris doctor degree.
B. The Present Litigation
Sixuvus filed the present lawsuit against Willis alleging claims for intentional interference with contractual relationships, intentional and negligent interference with prospective economic advantage, and unfair business practices, and sought damages and injunctive relief. Willis answered and, by cross-complaint against Sixuvus, alleged causes of action for misappropriation of likeness, invasion of privacy, unfair business practices, and other claims.
Additionally, Sixuvus had a scheduled January 9, 2009, concert date at which the Village People were to appear in San Diego County, where Willis and his wife resided. Sixuvus was concerned that Willis's conduct at the San Francisco and Hollywood appearances portended possible disruptive behavior at the San Diego appearance. Accordingly, after filing the present lawsuit, Sixuvus sought a temporary restraining order and an order to show cause re preliminary injunction to prevent Willis from disrupting the upcoming concert. The court issued the requested temporary restraining order and order to show cause.
C. The Anti-SLAPP Motion
Willis filed an anti-SLAPP motion seeking to strike Sixuvus's complaint. He asserted the threshold burden on his motion was satisfied because the complaint sought to pursue claims that arose from the "cease and desist" letter. Willis asserted this letter was a prelitigation demand letter qualifying as protected petitioning activity within the meaning of the anti-SLAPP statute. He argued the burden therefore shifted to Sixuvus to show probable success on the merits of its complaint, and that Sixuvus could not meet that burden.
Sixuvus opposed the motion, arguing (1) Willis had not satisfied his burden of showing Sixuvus's claims arose from protected petitioning activity by Willis, and (2) Sixuvus had provided a prima facie showing of facts that would sustain a judgment in its favor. Sixuvus first argued its claims were based on a course of conduct by Willis directed at interfering with its business relationships, and the "cease and desist" letter did not qualify as conduct in furtherance of protected petitioning activity because it contained defamatory statements and only incidentally referred to possible legal action. Sixuvus alternatively asserted that it had satisfied its burden of showing probable success on the merits, because the bulk of the cease and desist letter contained statements that were libelous per se. These statements, Sixuvus argued, would not be protected by the litigation privilege if the statements were not made with a good faith belief in a legally viable claim and in serious contemplation of litigation. Sixuvus argued it produced prima face evidence that Willis's defamatory statements were not made with a good faith belief in a legally viable claim and in serious contemplation of litigation, and thus satisfied its burden of showing probable success on the merits.
The trial court concluded Willis had not satisfied his burden of demonstrating Sixuvus's claims arose out of Willis's protected activity. The court held that the principal thrust of its claims—Willis was attempting to disrupt Sixuvus's performances and business relationships—was controlling, and the "cease and desist" letter was only incidental to the gravamen of Sixuvus's causes of action. Accordingly, the court denied the anti-SLAPP motion. Willis appeals the order.
II
LEGAL STANDARDS
A. The Anti-SLAPP Law
The anti-SLAPP law provides that "[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).) The purpose of the statute is to encourage participation in matters of public significance by allowing a court to promptly dismiss unmeritorious actions or claims brought to chill another's valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. (Id., subd. (a).)
The anti-SLAPP law involves a two-step process for determining whether a claim is subject to being stricken. In the first step, the defendant bringing an anti-SLAPP motion must make a prima facie showing that the plaintiff's suit is subject to section 425.16 by showing the plaintiff's claims arise from conduct by the defendant taken in furtherance of the defendant's constitutional rights of petition, or free speech in connection with a public issue, as defined by the statute. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733.) If the defendant does not demonstrate this initial "arising from" prong, the court should deny the anti-SLAPP motion and need not address the second step. (City of Riverside v. Stansbury (2007) 155 Cal.App.4th 1582, 1594; Wang v. Wal-Mart Real Estate Business Trust (2007) 153 Cal.App.4th 790, 811.)
If the defendant does satisfy the first step, the burden shifts to the plaintiff to demonstrate there is a reasonable probability it will prevail on the merits at trial. (§ 425.16, subd. (b)(1).) In this phase, the plaintiff must show both that its claim is legally sufficient and that there is admissible evidence, if credited, sufficient to sustain a favorable judgment. (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 823, disapproved on other grounds by Equilon, supra, 29 Cal.4th at p. 68, fn. 5; Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 358.) In making this assessment, the court must consider both the legal sufficiency of, and evidentiary support for, the pleaded claims. (Traditional Cat Assn., Inc. v. Gilbreath (2004) 118 Cal.App.4th 392, 398-399.)
On appeal, we review de novo the trial court's ruling on the anti-SLAPP motion to strike. (Bernardo v. Planned Parenthood Federation of America (2004) 115 Cal.App.4th 322, 339.)
B. The Gravamen of the Claim Controls Application of the Anti-SLAPP Law
The California Supreme Court has recognized the anti-SLAPP statute should be broadly construed (Equilon, supra, 29 Cal.4th at p. 60, fn. 3) and a plaintiff cannot avoid operation of the anti-SLAPP statute by attempting, through artifices of pleading, to characterize an action as a garden variety tort or contract claim when in fact the claim is predicated on protected speech or conduct. (Navellier v. Sletten (2002) 29 Cal.4th 82, 90-92.) Accordingly, we disregard the labeling of the claim (Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 522) and instead "examine the principal thrust or gravamen of a plaintiff's cause of action to determine whether the anti-SLAPP statute applies" and whether the trial court correctly ruled on the anti-SLAPP motion. (Id. at pp. 519-522.) We assess the principal thrust by identifying "the allegedly wrongful and injury-causing conduct... that provides the foundation for the claim." (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 189.) If the core injury-producing conduct on which the plaintiff's claim is premised does not rest on protected speech or petitioning activity, collateral or incidental allusions to protected speech or activity will not trigger application of the anti-SLAPP statute. (Ibid.)
III
ANALYSIS
A. The "Arising From" Prong
The trial court denied Willis's anti-SLAPP motion because it concluded the thrust of Sixuvus's claims arose from Willis's nonprotected conduct. Willis asserts this was error because Sixuvus's claims arose from his cease and desist letter, a prelitigation communication within the ambit of the anti-SLAPP statute (see, e.g., Flatley v. Mauro (2006) 39 Cal.4th 299, 322, fn. 11), and therefore Sixuvus's claims were premised on protected petitioning conduct. Our de novo review convinces us that, although the cease and desist letter is alleged to have been one aspect of Willis's alleged efforts to disrupt Sixuvus's business relationships, Willis engaged in other conduct separate and apart from the cease and desist letter and that distinct conduct, if demonstrated, would support the claims pleaded against Sixuvus. Willis sought to interfere with live performances, both in San Francisco and later in Hollywood, and threatened to continue this disruptive behavior. Willis, who warned Sixuvus that he had "every [intention] of drying up your shows" and that 2008 would be "your last year faking it.... [You're] finished, " attacked the legitimacy of Sixuvus's version of the Village People (and tried to prevent Sixuvus from garnering a "Walk of Fame" star) by correspondence to the Hollywood Chamber of Commerce that described the members of Sixuvus as "charlatans" and a "fake group." Willis also stated he had spoken with Sixuvus's licensor and was "hope[ful] [the licensor] intercedes before this issue explodes, " which could support the conclusion that Willis was seeking to directly interfere with the license on which Sixuvus relied to continue performing as the Village People.
Even assuming the communiqué promising legal action against Sixuvus (and threatening legal action against third parties) was a "prelitigation communication" within the ambit of the anti-SLAPP statute, the claims asserted by Sixuvus were not based on that communication, but were instead based on the ongoing course of conduct by Willis that was not petitioning activity.
B. The "Reasonable Probability of Success" Prong
Even assuming the cease and desist letter was inextricably interwoven with Sixuvus's pleaded claims, our de novo review convinces us the trial court correctly denied the anti-SLAPP motion for the independent reason that Sixuvus produced sufficient evidence that, if credited, would support a judgment in favor of Sixuvus on its pleaded claims.
Sixuvus's cause of action for intentional interference with existing contractual relations required proof of (1) the existence of a valid contract between Sixuvus and a third party, (2) Willis's knowledge of that contract, (3) Willis's intentional acts designed to induce a breach or disruption of the contractual relationship, (4) actual breach or disruption of the contractual relationship, and (5) resulting damage. (Reeves v. Hanlon (2004) 33 Cal.4th 1140, 1148.) Sixuvus need not prove Willis acted with the primary purpose of disrupting the contract, but must show only that he knew the interference was certain or substantially certain to occur as a result of his actions. (Ibid.) Sixuvus's claim for interference with prospective economic relations placed on Sixuvus the additional burden of proving Willis's interference was wrongful " 'by some measure beyond the fact of the interference itself.' " (Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376, 393.) Finally, Sixuvus's claim for negligent interference with prospective economic advantage required proof that (1) an economic relationship existed between Sixuvus and a third party that contained reasonably probable future economic benefits for Sixuvus; (2) Willis knew of the existence of the relationship and knew or should have known that if he did not act with due care his actions would interfere with this relationship and cause Sixuvus to lose in whole or in part the probable future economic benefits of the relationship; (3) Willis was negligent; and (4) such negligence caused damage to Sixuvus because the relationship was actually interfered with or disrupted and Sixuvus lost in whole or in part the economic benefits reasonably expected from the relationship. (See, e.g., North American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764, 786.)
Sixuvus's showing below contained evidence necessary to support each element of these three claims, and Willis on appeal does not seriously dispute the adequacy of the evidentiary showing on any of the affirmative elements of its claims. Instead, Willis asserts Sixuvus could not demonstrate probable success on the merits absent evidence showing the alleged interfering conduct—including the cease and desist letter—was not absolutely privileged. However, the fact Willis threatened litigation (at some undefined date and upon certain conditions) does not automatically qualify his letter for the protections of the litigation privilege. As the Supreme Court in Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232 recently explained:
Willis's only appellate argument concerning the evidentiary showing in support of the affirmative elements of Sixuvus's causes of action is the peremptory assertion that there was no evidence of actual breach or lost economic advantages from Willis's interfering conduct. However, Sixuvus showed that Willis published his accusations to numerous third parties who were prospective buyers or promoters of Sixuvus's show, and a comparison of the number of bookings for first quarter of the calendar year preceding the interfering conduct with the first quarter of the calendar year after the interfering conduct showed Sixuvus's bookings dropped by over 75 percent.
"To be protected by the litigation privilege, a communication must be 'in furtherance of the objects of the litigation.' [Citation.] This is 'part of the requirement that the communication be connected with, or have some logical relation to, the action, i.e., that it not be extraneous to the action.' [Citation.] A prelitigation communication is privileged only when it relates to litigation that is contemplated in good faith and under serious consideration. [Citations.] [¶] The policy supporting the litigation privilege is furthered only if litigation is seriously considered: 'It is important to distinguish between the lack of a good faith intention to bring a suit and publications which are made without a good faith belief in their truth, i.e., malicious publications. The latter, when made in good faith anticipation of litigation, are protected as part of the price paid for affording litigants the utmost freedom of access to the courts. This policy consideration is not advanced, however, when the person publishing an injurious falsehood is not seriously considering litigation. In such a case, the publication has no "connection or logical relation" to an action and is not made "to achieve the objects" of any litigation [citation]. No public policy supports extending a privilege to persons who attempt to profit from hollow threats of litigation.' [Citations.] [¶] Whether a prelitigation communication relates to litigation that is contemplated in good faith and under serious consideration is an issue of fact... Because a factual inquiry is required in order to determine whether a particular [prelitigation communication] is privileged, it is impossible to conclude that the litigation privilege would bar [the present action]." (Id. at pp. 1251-1252.)
We determine whether Sixuvus presented some evidence that raised a triable issue of fact that Willis did not send the letter while seriously and in good faith contemplating imminent litigation (Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359), but instead was making a " 'hollow threat[] of litigation' " to achieve some collateral goal. (Action Apartment Assn., Inc. v. City of Santa Monica, supra, 41 Cal.4th 1251 .) The evidentiary showing below raised a triable issue of fact on whether Willis's threat of litigation was serious and in good faith. Willis stated that "registered trademarks used for fraudulent purposes are legally prohibited, " even though Willis admitted his representative had already "personally talked to... [the] Village People trademark owner" and therefore presumably knew the trademark owner had licensed Sixuvus to use the trademarked name and characters. Willis asserted he would bring "swift legal action" against both Sixuvus and its promoters if it continued to "mislead fans" by holding itself out as the "original and authentic Village People, " but a trier of fact could have concluded Willis did not have any serious intention to file an action because Willis's representative (as holder of a juris doctor degree) presumably knew that such threatened legal action would be barred under California law. Willis also asserted he intended to sue for Sixuvus "unauthorized use of [Willis's] voice and image." However, Willis knew Sixuvus was operating under license from CSP to perform as the Village People, and Willis presumably knew his original contract with CSP expressly (1) granted to CSP "and its designees" the right to use Willis's "pictures and likeness... for the purposes of trade... in connection with any products or services, " and (2) conveyed to CSP "all rights and interests of every kind and character in and to the results and proceeds of your services" as a Village People performer. A trier of fact could conclude Willis lacked any serious intention to pursue claims for unauthorized use of his voice and image considering the contractual grants to CSP, particularly because of the fact Willis had not pursued those claims for nearly three decades, and could conclude instead his threats were conveyed to Sixuvus and numerous third parties for the collateral purpose of implementing his expressed "[intention] of drying up your shows."
As Sixuvus noted below in opposition to Willis's anti-SLAPP motion, the only potential claim Willis might assert based on alleged misleading of the public was a claim under California's Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.) However, as Sixuvus correctly noted below, even assuming that claim was not time-barred by his 30 years of inaction (but see Bus. & Prof. Code, § 17208), that claim could not be maintained by Willis because he did not have standing (see, e.g., Buckland v. Threshold Enterprises, Ltd. (2007) 155 Cal.App.4th 798, 817), and Willis made no effort below to articulate any colorable claim that such an action would have been viable.
For the foregoing reasons, we conclude Sixuvus's evidentiary showing met its burden under the second prong of the anti-SLAPP statute, and provides an independent basis for affirming the trial court's ruling denying the anti-SLAPP motion.
DISPOSITION
The order is affirmed. Sixuvus is entitled to costs on appeal.
WE CONCUR: HALLER, Acting P. J. McINTYRE, J.