Wilson v. Landry

Full title: GRACE WILSON, Plaintiff and Appellant, v. STEVE LANDRY et al., Defendants…

Court: COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Sep 18, 2018

No. D072948 (Cal. Ct. App. Sep. 18, 2018)

Opinion

D072948

09-18-2018

GRACE WILSON, Plaintiff and Appellant, v. STEVE LANDRY et al., Defendants and Respondents.

Grace Wilson, in pro. per., for Plaintiff and Appellant. Gruenberg Law and Pamela Vallero for Defendants and Respondents.

IRION, J.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2017-00009820-CU-DR-CTL) APPEAL from an order, a judgment, and a postjudgment order of the Superior Court of San Diego County, Timothy B. Taylor, Judge. Order and judgment affirmed in part, reversed in part, and remanded with directions. Postjudgment order affirmed in part, vacated in part, and remanded with directions. Grace Wilson, in pro. per., for Plaintiff and Appellant. Gruenberg Law and Pamela Vallero for Defendants and Respondents.

In the complaint in this action, Grace Wilson alleged causes of action for defamation against Steve Landry and Joseph Dagostino. All of the claims arise from statements allegedly communicated by Landry and Dagostino (together Defendants) to the effect that Wilson tried to injure them with her car. The defamatory nature of these statements, according to Wilson, is that they "charge [her] with having committed a crime."

Defendants filed a special motion to strike the complaint pursuant to California's anti-SLAPP statute, Code of Civil Procedure section 425.16.¹ The trial court granted the motion and entered judgment in favor of Defendants. As we will explain, we agree with the trial court that (1) Landry and Dagostino each met his initial burden of establishing that the applicable claim arose from his right of free speech, and (2) in response, Wilson failed to meet her burden of presenting facts sufficient to establish a prima facie case of libel or slander as to Landry. However, as we will further explain, we disagree with the trial court's final ruling and will conclude that Wilson met her burden of presenting facts sufficient to establish a prima facie case of slander as to Dagostino.

1 Further unidentified statutory references are to the Code of Civil Procedure.
" 'SLAPP' is an acronym for 'strategic lawsuit against public participation' " (Baral v. Schnitt (2016) 1 Cal.5th 376, 381, fn. 1 (Baral))—which is litigation "brought to challenge the exercise of constitutionally protected free speech rights" (Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 196). The anti-SLAPP statute "provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity." (Baral, at p. 384; see § 425.16, subd. (a).)

In postjudgment proceedings, the court granted Defendants' motion for attorney fees and costs (§ 425.16, subd. (c)(1)) and denied three other requests/motions. Although Wilson appealed from that order, because she does not present any argument on appeal suggesting that the trial court erred, she has forfeited appellate review of the order. Nonetheless, since we will be reversing the grant of Dagostino's anti-SLAPP motion, we must vacate that portion of the postjudgment order awarding attorney fees and costs to Dagostino.

Thus, with regard to the order and judgment, we will affirm as to Landry, reverse as to Dagostino, and remand with directions that the court enter an order denying Dagostino's anti-SLAPP motion. With regard to the postjudgment order, we will vacate the grant of the motion for attorney fees and costs to Dagostino, vacate the amount of attorney fees and costs awarded, remand with directions that the court determine the appropriate amount of fees and costs to which Landry is entitled under section 425.16, subdivision (c)(1), and affirm the remainder of the order.

I.

INTRODUCTION

Because a "judgment or order of a lower court is presumed to be correct on appeal, . . . all intendments and presumptions are indulged in favor of its correctness." (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) As a related concept, since such a judgment or order is " 'presumed correct,' " on appeal the appellant has the burden of establishing reversible error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, italics omitted.)

In their briefing, Wilson and Defendants failed to support numerous factual assertions with citations, or at times accurate citations, to the record on appeal as required by California Rules of Court, rule 8.204(a)(1)(C).² Our independent review of the record on appeal has not helped in finding support for much of what the parties contend are the facts relevant to the issues on appeal. As particularly applicable here, where evidence is necessary to establish a fact, a record reference to an unsworn written or oral statement is insufficient. (In re Zeth S. (2003) 31 Cal.4th 396, 414, fn. 11 (Zeth S.) ["the unsworn statements of counsel are not evidence"]; Davenport v. Blue Cross of California (1997) 52 Cal.App.4th 435, 454 (Davenport) ["unsworn averments in a memorandum of law prepared by counsel do not constitute evidence"].) Absent a party's accurate record reference or our independent verification, we have not considered the party's factual presentation. (Rybolt v. Riley (2018) 20 Cal.App.5th 864, 868 [appellate courts may " 'disregard any factual contention not supported by a proper citation to the record' "]; County of Riverside v. Workers' Comp. Appeals Bd. (2017) 10 Cal.App.5th 119, 124 [appellate courts " 'ignore' " factual statements without record references]; McOwen v. Grossman (2007) 153 Cal.App.4th 937, 947 ["[s]tatements of fact that are not supported by references to the record are disregarded by the reviewing court"].) In applying these basic rules of appellate procedure, we have necessarily disregarded much of what both sides have presented as "facts" in their appellate briefs.

2 Further unidentified rule references are to the California Rules of Court.

II.

STATEMENT OF THE CASE

Despite seeking appellate review of an order striking her complaint, Wilson did not include the complaint in the record on appeal. Accordingly, on our own motion, we have augmented the record to include Wilson's complaint, filed March 20, 2017. (Rule 8.155(a)(1)(A).)

The first cause of action is for libel against Landry. Wilson alleges that on three days in March 2016, Landry posted on Facebook "stat[ements] that [Wilson] had tried to hit him with her car . . . ." According to the complaint, these posts are "libelous on their face," because "they charge [Wilson] with having committed a crime." Wilson also alleges that she was injured by these posts, causing her damages.

The second cause of action is for slander against Landry. Wilson alleges that, in or around a specified week in March 2016, Landry made the following statements to "multiple people": "that [Wilson] tried to hit him with her car"; "that [Wilson] tried to run him off the road"; and "that [Wilson] cursed at him as she tried to hit him with her car." According to the complaint, these statements "are slander per se in that they accuse [Wilson] of a crime." As in the first cause of action, Wilson alleges that these purportedly defamatory statements caused her damage.

The third cause of action is for slander against Dagostino. It is almost identical to the second cause of action against Landry, except that Wilson attributes to Dagostino only the one statement "that [Wilson] tried to hit him with her car."

In response to the complaint, Defendants filed a section 425.16 anti-SLAPP motion to strike each of the three causes of action. In support, Defendants filed a memorandum of points and authorities, a declaration from Landry, a declaration from Dagostino, and one exhibit.

Wilson opposed the motion by filing a memorandum of points and authorities, a declaration from Wilson, a declaration from Wilson's husband, a declaration from Wilson's daughter, five exhibits, and 42 evidentiary objections.³

3 At least 27 of Wilson's 42 evidentiary objections were directed to Defendants' memorandum of points and authorities, which is not evidence.

Defendants replied to Wilson's opposition with a memorandum of points and authorities, one exhibit, and 16 evidentiary objections (with a proposed order for the objections).

Following oral argument in August 2017, the trial court granted Defendants' motion, striking Wilson's complaint and ruling as follows: Wilson's objection to the timing of the service of the motion was overruled;⁴ all of Wilson's evidentiary objections were overruled; most of Defendants' evidentiary objections were overruled;⁵ Defendants met their initial burden under the anti-SLAPP statute, establishing that each of the challenged claims arose from activity protected by section 425.16; Wilson did not meet her responsive burden of establishing a probability of success on any of her claims; and Defendants, as the prevailing parties in an anti-SLAPP motion, were entitled to an award of reasonable attorney fees and costs upon a proper showing. On the same date, the court filed a judgment of dismissal.

4 More specifically, the court ruled that, because Wilson had been able to file a 15-page memorandum of points and authorities and three declarations, Wilson had not been prejudiced by any allegedly untimely service. In addition, the court invited Wilson to file a motion for reconsideration, if she thought she could establish the requisite prejudice.

5 The record on appeal does not contain a copy of the court's rulings on Defendants' evidentiary objections. Since we will be reaching issues that are based on the parties' evidentiary showing (see, e.g., pts. III.C.3. & III.C.3.a., post), we must know what evidence was before the trial court at the time it ruled. Thus, on our own motion, we have augmented the record on appeal to include the court's written rulings on Defendants' evidentiary objections, filed August 2, 2017. (Rule 8.155(a)(1)(A).)

In mid-September 2017, the parties filed two postjudgment motions and two postjudgment requests for orders to show cause why sanctions should not be granted. In an October 2017 postjudgment order, the court granted Defendants' motion for attorney fees and costs under the anti-SLAPP statute (§ 425.16, subd. (c)(1)), awarded Defendants $18,465.50 in fees and costs, and denied all other relief.

Wilson timely appealed from the August 2017 order granting the anti-SLAPP motion, the August 2017 judgment, and the October 2017 postjudgment order.⁶

6 An order granting an anti-SLAPP motion is not independently reviewable on appeal from the later judgment; review of the anti-SLAPP ruling requires a timely appeal from the order itself. (Russell v. Foglio (2008) 160 Cal.App.4th 653, 659-660; Maughan v. Google Technology, Inc. (2006) 143 Cal.App.4th 1242, 1246-1247.) By appealing from the order, Wilson complied with this jurisdictional requirement. (Contra Russell, at pp. 559-560; Maughan, at pp. 1246-1247.) Because Wilson also appealed from the judgment, we have jurisdiction over it as well.

III.

DISCUSSION

Before we reach the substantive issues on appeal related to Defendants' anti-SLAPP motion, we will first consider certain procedural arguments that Wilson raises. A. Wilson Did Not Meet Her Burden of Establishing that the Trial Court Erred in Overruling Her Objection to the Service of Defendants' Anti-SLAPP Motion

In her opposition to the anti-SLAPP motion, Wilson argued that the court should deny the motion because she was prejudiced by Defendants' allegedly untimely service of the motion. In support of this argument, Wilson's husband testified as to his knowledge of the timing of the service of the motion, and Wilson testified that she was "greatly prejudiced" by the "lack of timely notice," including specifically the inability to conduct research and to obtain evidence in opposition to the motion.

The court sustained Defendants' evidentiary objection to Wilson's testimony regarding prejudice and ruled that, based on Wilson's preparation and timely filing of a 15-page memorandum of points and authorities and three declarations (with five exhibits), Wilson did not meet her burden of establishing prejudice.⁷ On appeal, Wilson contends that, due to the allegedly improper statutory notice of the motion, her procedural due process rights were violated, and that the trial court erred in not denying Defendants' motion on this basis. We disagree.

7 In their reply in the trial court, Defendants presented evidence from their process server and argued that, based on this evidence, they had timely served the motion. The court did not reach that argument, ruling only that Wilson had not established the requisite prejudice to sustain a timeliness objection.

Notably, Wilson does not argue on appeal that the trial court abused its discretion in sustaining Defendants' evidentiary objection to her testimony of prejudice. (See People v. Powell (2018) 5 Cal.5th 921, 995 [trial court's decision to exclude evidence is reviewed on appeal for an abuse of discretion].) Thus, despite her arguments to the trial court and in her brief on appeal as to the extent of the prejudice she suffered—namely, describing everything she could not include in her opposition because of the allegedly short notice—the record contains no evidence of prejudice. (See Zeth S., supra, 31 Cal.4th at p. 414, fn. 11; Davenport, supra, 52 Cal.App.4th at p. 454.) Even if we assume that Defendants did not provide timely notice here, without evidence of prejudice resulting in a miscarriage of justice, such error does not entitle an appellant like Wilson to a reversal. (Cal. Const., art. VI, § 13; § 475; Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800-802.)

Accordingly, because the record contains no admissible evidence of prejudice, Wilson did not meet her burden of establishing that the trial court erred in overruling her objection to Defendants' allegedly untimely service of the anti-SLAPP motion. B. This Court Will Not Consider Additional Evidence on Appeal

In her discussion of the standard of review on appeal, Wilson cites section 909,⁸ quotes from a portion of the statute that allows an appellate court to take evidence on appeal, and argues in full as follows: "Credibility can be challenged, and facts can be challenged, giving rise to an exception to the substantial evidence standard of review." To the extent this one-sentence statement is Wilson's request that we take additional evidence and/or make factual findings, we decline the request on procedural and substantive grounds—either of which provides an independent basis for our decision.

8 "In all cases where trial by jury is not a matter of right or where trial by jury has been waived, the reviewing court may make factual determinations contrary to or in addition to those made by the trial court. The factual determinations may be based on the evidence adduced before the trial court either with or without the taking of evidence by the reviewing court. The reviewing court may for the purpose of making the factual determinations or for any other purpose in the interests of justice, take additional evidence of or concerning facts occurring at any time prior to the decision of the appeal, and may give or direct the entry of any judgment or order and may make any further or other order as the case may require. This section shall be liberally construed to the end among others that, where feasible, causes may be finally disposed of by a single appeal and without further proceedings in the trial court except where in the interests of justice a new trial is required on some or all of the issues." (§ 909.)

Procedurally, Wilson failed to file both a motion (to take additional evidence or to make factual findings) and the proposed findings, each of which is required by rule 8.252(b).⁹

9 Rule 8.252(b) provides in full: "A party may move that the reviewing court make findings under Code of Civil Procedure section 909. The motion must include proposed findings."

Substantively, Wilson's presentation fails for at least two reasons. Initially, Wilson does not explain either how credibility is at issue¹⁰ or what factual finding(s) the trial court made that we are to review for substantial evidence. Moreover, under long-established authority, an appellate court may take new evidence only where the result will enable the court to finally resolve the dispute in the underlying appeal, either by affirming a judgment in favor of the defendant or by reversing with directions to enter a judgment in favor of the appellant. (Tupman v. Haberkern (1929) 208 Cal. 256, 269; Smith v. Smith (1955) 135 Cal.App.2d 100, 108.) Here, in her appeal from an order granting an anti-SLAPP motion—i.e., striking the complaint and dismissing the action—regardless what new evidence she had in mind, Wilson is not relying on it to obtain an affirmance, and no other ruling will finally resolve the claims in her complaint.

10 Nor could she in this type of appeal. In considering the pleadings and declarations in an anti-SLAPP appeal, the appellate court does not make credibility determinations or compare the weight of the evidence. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3 (Soukup).)

Thus, we will proceed to our review of the judgment and, more specifically, of the trial court's grant of Defendants' anti-SLAPP motion. C. The Trial Court Properly Granted Landry's Anti-SLAPP Motion, but Erred in Granting Dagostino's Anti-SLAPP Motion

As we will explain, we agree with the trial court that all three causes of action arose from constitutionally protected free speech and that Wilson failed to present facts sufficient to establish a prima case of either libel or slander as to Landry. However, as we will further explain, the court erred in ruling that Wilson failed to present facts sufficient to establish a prima facie case of slander as to Dagostino.

1. Anti-SLAPP Law

Section 425.16, subdivision (b)(1) provides in full: "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." Subdivision (e) describes four types of acts in furtherance of a person's constitutional rights that are subject to subdivision (b)(1)'s requirement that the challenged acts be " 'in connection with a public issue.' "

In applying section 425.16, subdivision (b)(1), a court generally is required to engage in a two-step process. "First, the defendant must establish that the challenged claim arises from activity protected by section 425.16." (Baral, supra, 1 Cal.5th at p. 384; see Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1251 [moving party has the burden on the first prong] (Jackson).) "If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success." (Baral, at p. 384; see Jackson, at p. 1251 [opposing party has the burden on the second prong].)

To meet this latter burden, the party opposing the motion must establish that the elements of the challenged claim(s) are " 'supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the [party opposing the motion] is credited.' " (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820 (Oasis West Realty); accord, Soukup, supra, 39 Cal.4th at p. 269, fn. 3.) In making this showing, the party opposing the motion cannot rely solely on the allegations in the complaint, but must present evidence that would be admissible at trial. (Alpha and Omega Development, LP v. Whillock Contracting, Inc. (2011) 200 Cal.App.4th 656, 664 (Alpha and Omega); Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1237.) The court accepts as true the evidence from the party opposing the motion and evaluates the moving party's evidence only to determine if it has defeated the opposing party's evidence as a matter of law. (Soukup, supra, 39 Cal.4th at p. 269, fn. 3.)

We review de novo the denial of an anti-SLAPP motion. (Oasis West Realty, supra, 51 Cal.4th at p. 820.) " 'Only a [claim] 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.' " (Ibid.)¹¹

11 Citing Bose Corp. v. Consumers Union of U.S., Inc. (1984) 466 U.S. 485, Wilson suggests that, because her case "involv[es] the First Amendment," on appeal we give no deference to the trial court's findings and "must . . . independently decide if the evidence is sufficient to overcome the defendant's First Amendment rights." In Bose Corp., a judgment was entered mostly in favor of a defendant following a 19-day bench trial on the plaintiff's claim of product disparagement brought in federal district court in Massachusetts. (Id. at pp. 488-489.) On appeal, the issue was how a federal appellate court should review the judgment, given the following competing standards: (1) Rule 52(a) of the Federal Rules of Civil Procedure (28 U.S.C.) directs that "[f]indings of fact shall not be set aside unless clearly erroneous"; and (2) New York Times Co. v. Sullivan (1964) 376 U.S. 254, 284-286, requires de novo review " 'of the whole record' in order to make sure that 'the judgment does not constitute a forbidden intrusion on the field of free expression' " (Bose Corp., at p. 499).
Bose Corp. is inapplicable. Not only is Rule 52(a) of the Federal Rules of Civil Procedure (28 U.S.C.) inapplicable in state court, this is an appeal from a ruling on a pretrial motion to strike a complaint in which the trial court did not make findings of fact related to the defamation claims.
In any event, under well-established California law, we will be applying independent review to the application of a California statute that requires the court to determine both whether Wilson's claims arise from speech protected by the federal or state constitution and whether, fully crediting the admissible evidence presented by the plaintiff, the claims lack merit as a matter of law. (Oasis West Realty, supra, 51 Cal.4th at p. 820.)

On appeal, Wilson argues that her claims do not arise from protected speech and that she presented evidence of a prima facie case against both Landry (for libel and slander) and Dagostino (for slander). Defendants, in response, contend that the trial court correctly ruled both that all three causes of action arise from protected speech and that either of two defenses—(1) truth, and (2) the litigation privilege—defeats Wilson's evidence of liability as a matter of law.

In our de novo review, we must "consider the elements of the challenged claim and what actions by defendant supply those elements and consequently form the basis for liability." (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1063.) Here, Wilson has asserted three causes of action for defamation against the two defendants: libel and slander against Landry, and slander against Dagostino. "Defamation constitutes an injury to reputation; the injury may occur by means of libel or slander."¹² (Shively v. Bozanich (2003) 31 Cal.4th 1230, 1242; see Civ. Code, § 44.) Under this standard, to establish liability on any of her claims for defamation, Wilson must prove that Landry or Dagostino "intentionally communicated to a third person, either orally or in writing, a false, unprivileged statement about [Wilson] that had a natural tendency to injure h[er] or that caused h[er] special damage." (Reed v. Gallagher (2016) 248 Cal.App.4th 841, 855 (Reed); see Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645 [defamation "involves the intentional publication of a statement of fact that is false, unprivileged, and has a natural tendency to injure or which causes special damage"].)

12 "Libel is a false and unprivileged publication by writing . . . , which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation." (Civ. Code, § 45.)
"Slander is a false and unprivileged publication, orally uttered, . . . which: [¶] 1. Charges any person with crime . . . ; [or] [¶] . . . [¶] 5. Which, by natural consequence, causes actual damage." (Civ. Code, § 46.)

Each of the causes of action is based on what Wilson alleges were statements made by Defendants that third parties understood to have accused her of a crime.¹³ The evidence before the trial court—which we accept only for purposes of this appeal—indicates that, on or about March 17, 2016, Landry, Dagostino, and other cyclists participated in the opening event of the Fiesta Island World Championships; at that competition, the driver of a brown BMW X5 automobile positioned the vehicle at the front of a group of cyclists; as the driver and cyclists proceeded around the island, some of the cyclists passed the vehicle; the day after the race, Landry posted the following statement on the Fiesta Island World Championships' Facebook page, "Anyone get video of the BMW that tried to hit me last night?"; Landry also "admitted" to third parties having made "all of the statements that form the basis of this case as well as [having] publish[ed] said comments on Facebook"; Dagostino told third parties that Wilson tried to hit him with her car during the cycling event; and, as a result of Landry's written Facebook post and Landry's and Dagostino's oral statements, Wilson suffered damages.

13 Although Wilson never states what crime she contends Defendants intended by their statements, we note that "[a]n assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (Pen. Code, § 240; see People v. Williams (2001) 26 Cal.4th 779, 782 [an assault requires the willful commission of an act that by its nature will probably and directly result in injury to another (i.e., a battery), and with knowledge of the facts sufficient to establish that the act by its nature will probably and directly result in such injury].)

2. Prong One: Defendants Met Their Initial Burden of Establishing That Wilson's Claims Arise from Constitutionally Protected Activity

For purposes of section 425.16, subdivisions (b)(1) and (e), Defendants argue that their alleged acts were in furtherance of their constitutional right of free speech in connection with a public issue. More specifically, Defendants contend that their statements were "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)), and/or were "other conduct . . . in connection with a public issue or an issue of public interest" (§ 425.16, subd. (e)(4)).

For purposes of section 425.16, subdivision (e)(3), we agree with First District's recent statement that, because " '[w]eb sites accessible to the public . . . are "public forums" for purposes of the anti-SLAPP statute[]' (Barrett v. Rosenthal (2006) 40 Cal.4th 33, 41, fn. 4)," there is no dispute that " 'Facebook's website and the Facebook pages at issue are "public forums," as they are accessible to anyone who consents to Facebook's Terms.' " (Cross v. Facebook, Inc. (2017) 14 Cal.App.5th 190, 199.) Wilson's evidence that the Fiesta Island World Championships' Facebook page required approval before someone could join the group does not support her argument that the Facebook page is not a public forum. Rather, because—as Wilson expressly acknowledges—"anyone could see the [group's] postings," the fact that not everyone is authorized to post a communication is not evidence that the group's postings are not available to public. Since a Facebook page like the one under consideration here "is but one source of information on an issue, and other sources are easily accessible to interested persons, the [Facebook page containing Landry's post] is but one source of information in a larger public forum." (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 897.) Accordingly, we conclude that Landry's post on the Fiesta Island World Championships' Facebook page at issue here is a written statement made in a public forum under section 425.16, subdivision (e)(3).

We now turn to whether Defendants' statements were made in connection with an issue of public interest—which is the standard under both subdivision (e)(3) and subdivision (e)(4) of section 425.16. Although section 425.16 does not provide a definition for the term "issue of public interest," it is to be "construed broadly in the anti-SLAPP context"—i.e., " 'any issue in which the public is interested.' " (Daniel v. Wayans (2017) 8 Cal.App.5th 367, 386.) The issue need not be " 'significant' " to be protected by the anti-SLAPP statute; "it is enough that it is one in which the public takes an interest." (Nygård, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1042.)

In Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107 (Du Charme), for example, the court held that in order to satisfy the "public issue/issue of public interest" requirement of subdivision (e)(4), "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, at p. 119, first italics added.) As applicable here, "the public interest may extend to statements about conduct between private individuals." (Chaker v. Mateo (2012) 209 Cal.App.4th 1138, 1145.)

In Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450 (Hecimovich), the terminated volunteer coach of a fourth grade afterschool sports team sued the school's parent-teacher organization and three other volunteers, alleging a number of causes of action including defamation. (Id. at pp. 454-455.) The allegedly defamatory communications were based on "the conduct of a kid on a fourth grade basketball team, his parents' and his coach's reactions to it, and the ultimate resolution of the situation." (Id. at p. 456.) The defendants filed an anti-SLAPP motion, arguing that, as relevant here, the claims were made in connection with an issue of public interest under section 425.16, subdivision (e)(4), since they "involved communications between a parent-teacher organization and parents concerning plaintiff's coaching of young children." (Hecimovich, at p. 457.) The Court of Appeal held in part that "safety in youth sports . . . is another issue of public interest within the SLAPP law." (Id. at p. 468.) We agree with the Third District's recent statement that the above-quoted holding in Hecimovich fits within Du Charme's definition of a public issue, since the issue of safety in youth sports "interested a definable portion of the public (the parents and the program's organizers and sponsors) and occurred in the context of an ongoing controversy where public participation should be encouraged." (Baughn v. Department of Forestry and Fire Protection (2016) 246 Cal.App.4th 328, 339 (Baughn), citing Hecimovich, at p. 468, and Du Charme, supra, 110 Cal.App.4th at p. 119, both quoted ante.)

Likewise, here, for purposes of section 425.16, subdivision (e), Defendants' allegedly defamatory statements were made in connection with an issue of public interest under subdivision (e)(4)—namely, cyclists' safety on public roads at the Fiesta Island World Championships. Based on an exhibit submitted by Wilson, the March 17, 2016 race was "the inaugural 2016 F[iesta ]I[sland ]W[orld ]C[hampionships'] opener" with weekly races to follow. Based on Defendants' testimony, Defendants both felt threatened by the driver of the brown BMW X5, and Landry communicated his allegedly defamatory statements in part "[i]n an effort to increase safety awareness" for the ongoing event.

We disagree with Wilson's suggestion that the allegedly defamatory statements "only affected [Defendants], not the entire cycling community." Just as the parents, the youth program's organizers, and sponsors were a sufficiently "definable portion of the public" in Hecimovich, supra, 203 Cal.App.4th 450 (Baughn, supra, 246 Cal.App.4th at p. 339), so too are the competitors in the Fiesta Island World Championships who participate in the weekly event. Likewise, just as the allegedly defamatory statements in Hecimovich "occur[red] in the context of an ongoing controversy where public participation should be encouraged" (Baughn, supra, 246 Cal.App.4th at p. 339), the allegedly defamatory statements by Defendants here also occurred during an ongoing controversy (safety of cyclists who must share the road with vehicles on Fiesta Island) where public participation (by riders as well as drivers) should be encouraged. Notably, Wilson presented the most persuasive evidence of the ongoing controversy: Wilson testified that she went to Fiesta Island on the date of the opening event of the Fiesta Island World Championships (Mar. 17, 2016) for the specific purpose of taking "action to stop the aggressive cyclists on Fiesta Island."

For the foregoing reasons, Defendants met their burden under section 425.16, subdivision (b)(1), of establishing that the causes of action Wilson alleged against them arose from their constitutional right of free speech in connection with a public issue. The burden under section 425.16, subdivision (b)(1), thus shifted to Wilson to establish the probability that she will prevail on each of the three claims. (Baral, supra, 1 Cal.5th at p. 384; Jackson, supra, 10 Cal.App.5th at p. 1251.)

3. Prong Two: Wilson Did Not Meet Her Responsive Burden of Presenting Evidence of a Prima Facie Case Against Landry

Wilson alleged two defamation causes of action against Landry: one for libel, based on a Facebook post; and one for slander, based on oral statements to multiple people. As we explain, however, the evidence Wilson submitted to meet her prong two burden—which is found in three declarations and five exhibits—is insufficient to support a prima facie showing of facts that would support a judgment favorable to Wilson on either cause of action.

a. First Cause of Action: Libel Against Landry

In her cause of action for libel against Landry, Wilson alleged that "Landry published Facebook postings stating that [Wilson] had tried to hit him with her car . . . ."

Despite alleging in her complaint the text of two libelous Facebook posts by Landry, in the evidence submitted in support of her prong two showing in opposition to Landry's anti-SLAPP motion, Wilson presented a copy of the following one Facebook post: "Anyone get video of the BMW that tried to hit me last night?"¹⁴ The test for libel per se, which is what Wilson pleaded, "is whether a defamatory meaning appears from the language itself without the necessity of explanation or the pleading of extrinsic facts." (MacLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536, 549; see Civ. Code, § 45a ["A libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact, is said to be a libel on its face."]; see generally, 5 Witkin, Summary of Cal. Law (11th ed. 2017) Torts, §§ 637-648, pp. 877-890.)

14 Since evidence is required for a plaintiff to meet her prong two analysis, not merely allegations (Alpha and Omega, supra, 200 Cal.App.4th at p. 664), we consider only the one Facebook post set forth in the text, ante. Likewise, we disregard Wilson's argument on appeal that Landry's allegedly defamatory "statements in the first cause of action include pictures of [Wilson]," because Wilson did not submit evidence to support such a statement in her opposition to Landry's anti-SLAPP motion.

Under this standard, as a matter of law, Landry's one-sentence Facebook post is not libel per se, since the only possible interpretation of this statement alone—i.e., "without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact" (Civ. Code, § 45a)—is that Landry did not know the identity of the person who allegedly "tried to hit" him.

Thus, in the prong two analysis, Wilson did not meet her burden to present evidence that Landry published "a false, unprivileged statement about [Wilson] that had a natural tendency to injure h[er] or that caused h[er] special damage." (Reed, supra, 248 Cal.App.4th at p. 855, italics added; see Civ. Code, §§ 45 [libel], 45a [libel per se].)

b. Second Cause of Action: Slander Against Landry

In her cause of action against Landry for slander, Wilson alleged that "Landry told multiple people" that Wilson "tried to hit him with her car; [¶] . . . tried to run him off the road; and [¶] . . . cursed at him as she tried to hit him with her car." However, Wilson did not testify regarding any alleged slander by Landry, and the declaration testimony from Wilson's husband that mentioned or related to allegedly slanderous statements by Landry did not present a prima facie case of slander against Landry.

Wilson's husband testified: "Landry has also admitted in my presence to telling [S.L., D.A., and S.T.,] as well as others[,] all of the statements that form the basis of this case . . . ." However, this witness's proclamation that Landry "admitted . . . to telling . . . others all of the statements that form the basis of this case" is not evidence of the substance of any of the allegedly slanderous statements.¹⁵

15 Nor may we assume that this testimony was referring to what Wilson alleged in her complaint to be Landry's slanderous statement. The witness did not say this, and there is no evidence that he knew what Wilson had alleged in her complaint.

Wilson's husband further testified: "Both [Wilson] and I have asked Defendants multiple times to remove the Facebook post, but they have refused despite confirming that they know that it is a lie." However, Landry's Facebook post merely asked, "Anyone get video of the BMW that tried to hit me last night?"; and the witness's testimony that Landry knew his Facebook post was "a lie" does not establish that the post was defamatory. Wilson has not attempted to explain how a question that asks for the identity of a person can be a lie. Moreover, neither the Facebook post nor Landry's alleged statement identifies Wilson.

In short, because Wilson did not present evidence of what Landry said to third parties about Wilson, Wilson did not make the required prima facie showing that Landry made "a false, unprivileged statement about [Wilson] that had a natural tendency to injure h[er] or that caused h[er] special damage." (Reed, supra, 248 Cal.App.4th at p. 855, italics added; see Civ. Code, § 44, subd. (b) [slander].)

4. Prong Two: Wilson Met Her Responsive Burden of Presenting Evidence of a Prima Facie Case Against Dagostino

In her cause of action for slander against Dagostino, Wilson alleged that "Dagostino told multiple people that [Wilson] tried to hit him with her car."

The evidence Wilson submitted in support of her prong two showing in opposition to Dagostino's motion included the following declaration testimony:

• Wilson testified: "In my presence, Dagostino admitted telling people that I tried to hit him, including but not limited to Landry, [S.L. and M.C.]"

• Wilson's husband testified: "Dagostino has admitted in my presence to telling people that [Wilson] tried to hit him, including but not limited to Landry, [S.L., and M.C.]"

• Wilson's husband further testified: "During the first week of April 2016, [M.C.] admitted in my presence that Dagostino told him that [Wilson] tried to hit him."

• Finally, Wilson also testified: "I have suffered and continue to suffer injuries due to Defendants['] egregious defamation, including but not limited to being extremely humiliated . . . ."

These statements, in contrast to those about Landry, present a prima facie showing of facts to support a favorable judgment, if this evidence is credited at trial.

The trial court ruled, and Dagostino argues on appeal, that each of two of his affirmative defenses—namely, (1) truth, and (2) the litigation privilege—negates Wilson's showing and establishes as a matter of law that Wilson is not entitled to relief. We are not persuaded.

Although the defendant has the burden to prove his affirmative defenses to a defamation claim at trial (e.g., Parisi v. Mazzaferro (2016) 5 Cal.App.5th 1219, 1229, fn. 13 [truth is a defense]; Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 37 [litigation privilege]), applicable case law is inconsistent as to which party bears the burden of proof of an affirmative defense in the context of an anti-SLAPP motion (Dickinson v. Cosby (2017) 17 Cal.App.5th 655, 683 [collecting cases].) Here, however, we need not decide who has the burden, because by the evidence Wilson submitted, she made a prima facie showing of facts which, if accepted by the trier of fact, would negate both of the affirmative defenses raised by Dagostino regardless of any showing he had made.

Dagostino first argues that the truth of his alleged statements is a defense to Wilson's claim for slander and that Wilson did not present evidence that his allegedly slanderous statement (that Wilson tried to hit Dagostino with her car) was false. However, the record does not support Dagostino's argument, because Wilson submitted the following unrebutted testimony from her husband: "Dagostino admitted under oath . . . that [Wilson] did not try to hit him with her car . . . ." (Italics added.) In addition, Wilson also presented the following evidence in opposition to Dagostino's anti-SLAPP motion that, if credited, would defeat the defense of truth to the alleged statement that Wilson tried to hit Dagostino with her car:

• Wilson testified: "I NEVER swerved and NEVER steered nor in any other way moved my car to the left side of the road as Defendants now claim. I NEVER attempted to either force Defendants off the road, hit them, nor intimidate them." (Emphasis in original.)

• Wilson's husband testified: "Both Defendants ADMITTED UNDER OATH during trial [in a different lawsuit brought by Wilson's husband], that [Wilson] did NOT swerve her car, did NOT steer her car to the left, did NOT try to hit them nor run them off the road. Both admitted that [Wilson] kept her car straight and the distance between the shoulder of the road and [Wilson's] car remained constant as they passed her car." (Emphasis in original.)

• Wilson's daughter, who was in Wilson's car, video recording the event, testified: "[Wilson] did not swerve her car, did not curse, did not steer her car to the right nor left and maintained a straight course on the road the entire time that Defendants [were] within her vicinity on March 17, 2016. [Wilson] NEVER attempted to either force Defendants off the road, hit them, nor intimidate them as is readily verifiable by my video." (Emphasis in original.)

With this evidence in the record, (1) the trial court erred in ruling that Dagostino met his burden of establishing the truth of his allegedly defamatory statement that Wilson attempted to hit him with her car, and (2) on our de novo review, we conclude that Wilson presented sufficient facts which, if believed by a trier of fact, would defeat truth as a defense to her claim that Dagostino slandered her.

Dagostino next argues that an application of the litigation privilege is a complete defense to Wilson's slander claim. "The litigation privilege, codified at Civil Code section 47, subdivision (b), provides that a 'publication or broadcast' made as part of a 'judicial proceeding' is privileged. This privilege is absolute in nature, applying 'to all publications, irrespective of their maliciousness.' [Citation.] 'The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that [has] some connection or logical relation to the action.' [Citation.] The privilege 'is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards.' " (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241.) Significantly, a "prelitigation communication is privileged only when it relates to litigation that is contemplated in good faith and under serious consideration." (Id. at p. 1251.)

In his appellate brief, Dagostino tells us that "any verbal statements related to [the Facebook post] were pre-litigation statements, concerning the subject of the safety of cyclists on Fiesta Island, and made in good faith and under serious consideration of litigation." However, the record in this appeal does not support the application of the litigation privilege as proposed by Dagostino and accepted by the trial court.

Initially, Dagostino's argument limits application of the litigation privilege to alleged oral communications related to the Facebook post, and there is no evidence that the statements Wilson attributes to him were based on or related to the post.

In any event, regardless who has the burden related to the application of an affirmative defense, Wilson should prevail with regard to the application of the litigation privilege in the anti-SLAPP proceedings here. If Dagostino has the evidentiary burden, he did not meet it, since in his declaration in support of the anti-SLAPP motion, he never mentions litigation or anticipated litigation. If Wilson has the evidentiary burden to negate the affirmative defense, she met this burden by proffering the following unrebutted testimony from her husband: "[Dagostino] told [Wilson] that [he] had no intent to file a police report regarding March 17, 2016 nor sue her." (Italics added.)

For the foregoing reasons, by the evidence she presented in opposition to the anti-SLAPP motion, Wilson met the prong two burden of presenting evidence of a prima facie showing of facts which, if accepted by a trier of fact, would establish case of slander against Dagostino and negate the potential application of the two affirmative defenses Dagostino raised in the anti-SLAPP motion.¹⁶ D. Postjudgment Proceedings

16 We express no opinion as to the potential outcome of the prong two analysis as to the claims against Dagostino had the trial court been presented with appropriate hearsay objections to much of the evidence on which we rely in this opinion.

In a postjudgment order, the trial court granted Defendants' motion for attorney fees and costs under the anti-SLAPP statute, section 425.16, subdivision (c)(1), awarding a total of $18,465.50.¹⁷

17 In the same postjudgment order, the court also denied: Wilson's Code of Civil Procedure section 1008 motion for reconsideration of the order granting Defendants' anti-SLAPP motion (see fn. 4, ante; Defendants' request for an order to show cause why sanctions should not be imposed against Wilson under Code of Civil Procedure section 128.7; and Wilson's request for an order to show cause why sanctions should not be imposed against Defendants under Code of Civil Procedure section 128.7.

Since we are reversing the grant of Dagostino's anti-SLAPP motion, the related award of attorney fees and costs to Dagostino cannot stand. (Ulkarim v. Westfield LLC (2014) 227 Cal.App.4th 1266, 1282.) Such fees and costs are available only to a "prevailing defendant" in anti-SLAPP proceedings (§ 425.16, subd. (c)(1)), and since Dagostino is no longer a prevailing defendant on his anti-SLAPP motion, he is no longer entitled to award of fees and costs under the anti-SLAPP statute. (Ulkarim, at p. 1282.) That is because, generally speaking, attorney fees authorized by statute are considered allowable costs (§ 1033.5, subd. (a)(10)(B)), and an award of costs "falls with the judgment" as a matter of law (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1027).

However, Defendants filed only one anti-SLAPP motion and only one motion for attorney fees and costs, and the trial court did not allocate its award of fees and costs between those reasonably incurred by Landry and those reasonably incurred by Dagostino. Thus, we will vacate paragraph (4) of the postjudgment order, except that portion of the paragraph (4) in which the court determined that Landry was entitled to an award; and we will remand with directions that the trial court exercise its discretion in determining the appropriate amount of fees and costs to which Landry is entitled. (See Cole v. Patricia A. Meyer & Associates, APC (2012) 206 Cal.App.4th 1095, 1123 [remand for allocation of fees and costs to successful claims on anti-SLAPP motion].)

Although Wilson timely appealed from the postjudgment order, she raises no substantive issues or arguments in her brief related to any of the four rulings. Thus, she has forfeited the right to appellate review of these rulings. (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 [when appellant fails to provide " ' "reasoned argument and citations to authority, we treat the point as waived" ' "]; Trinkle v. California State Lottery (2003) 105 Cal.App.4th 1401, 1413 ["unless a party's brief contains a legal argument with citation of authorities on the point made, the court may treat it as waived and pass on it without consideration"].) On that basis, we will affirm the remainder of the postjudgment order.

DISPOSITION

The August 2017 anti-SLAPP order and judgment are each reversed as to Dagostino, and on remand the trial court is directed to enter an order denying Dagostino's anti-SLAPP motion. In all other respects, the order and judgment are each affirmed.

Paragraph (4) of the October 2017 postjudgment order (entitled "Judgment"), which granted Defendants' motion for attorney fees and costs, is vacated, except for that portion of paragraph (4) in which the court determined that Landy was entitled to attorney fees and costs. In all other respects, the postjudgment order is affirmed. On remand, the court is to exercise its discretion in determining the appropriate amount of fees and costs to which Landry is entitled under section 425.16, subdivision (c)(1), as a prevailing defendant on an anti-SLAPP motion.

Landry is entitled to his attorney fees and costs on appeal. (§ 425.16, subd. (c)(1); rule 8.278(a)(1), (3).) Wilson is entitled to her costs on appeal from the trial court's rulings in favor of Dagostino. (Rule 8.278(a)(1), (3).)

IRION, J. WE CONCUR: NARES, Acting P. J. DATO, J.