Opinion
NOT TO BE PUBLISHED
City & County of San Francisco Super. Ct. No. CGC-07-465863
Swager, J.
Appellants Sing Tao Newspapers San Francisco Ltd. and Sing Tao Newspapers Los Angeles Ltd. appeal from an order denying their special motion to strike respondent Demas Yan’s complaint under Code of Civil Procedure section 425.16 (hereafter section 425.16). Section 425.16 sets out a procedure for striking complaints in lawsuits that are commonly known as “SLAPP” suits (strategic lawsuits against public participation). Appellants contend the trial court erred in finding that respondent’s complaint for assault was not subject to challenge under section 425.16. They also claim that respondent has failed to present evidence sufficient to establish that he has a probability of prevailing on the merits. We agree and reverse.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Appellants are publishers of the two West Coast daily editions of The Sing Tao Daily, a Chinese-language newspaper. In April 2007, Kristin Choy was a news reporter and photographer for the newspaper assigned to cover the criminal trial of Augustine Fallay, a former San Francisco Department of Building Inspection official who had been charged with public corruption. Part of the prosecution’s case involved a $50,000 loan that respondent, at his business partner’s request, had allegedly provided to Fallay in exchange for favorable treatment regarding certain building permit applications.
Respondent testified as a defense witness in the Fallay trial on the afternoon of April 23, 2007. Choy was present during the testimony and attempted to interview and photograph respondent as he left the courtroom. In a declaration accompanying the motion to strike, Choy states that she took a photograph of respondent as she followed him out of the courtroom and down the hallway towards the elevators. At the elevator, she introduced herself and told him that she wanted to ask him a few questions. He replied that he did not want to talk “too much.” Luke Thomas, a reporter for another newspaper, observed that Choy spoke calmly and did not touch or threaten to touch respondent in any way. Choy and respondent entered the elevator together.
Choy continued to question respondent as they rode down the elevator. According to her, she maintained a reasonable distance from him and he did not appear to be frightened or intimidated. She continued to follow him through the courthouse lobby out onto the sidewalk. Altogether, she took 10 photographs of him. At some point, he raised his hand and his briefcase in an attempt to block her view. He finally indicated verbally that he wanted her to stop taking photographs. She complied and walked away. The entire encounter lasted about five minutes.
In a declaration filed in opposition to appellants’ motion, respondent describes the encounter somewhat differently, stating that Choy “accosted” him as he left the courthouse, refused to stop taking photographs of him when he told her to stop, and that she reached out and tried to push his hand and briefcase away when he attempted to shield his face from the camera. He also states he was “apprehensive of harmful and offensive physical contact by [Choy],” and that he suffered “embarrassment, distress, and hurt feelings.”
Choy’s article about respondent’s testimony at the Fallay trial was published by appellants on April 24, 2007. The article is accompanied by one of the photographs that Choy took of respondent outside of the courthouse.
On August 6, 2007, respondent filed a complaint for invasion of privacy against appellants, alleging that they had “invaded [his] right to privacy by identifying [him] by name in [their] publications and radio broadcast as the person who provided the money for the loan that was alleged as a bride [sic] by [respondent’s business partner] Tony Fu.” The complaint does not reference respondent’s encounter with Choy.
On September 17, 2007, appellants’ attorney sent a letter to respondent, advising him of their intention to file a demurrer and an anti-SLAPP motion if he did not agree to dismiss his lawsuit with prejudice. On September 19, 2007, respondent filed his first amended complaint, alleging a cause of action for assault only.
On October 24, 2007, appellants filed their motion to strike pursuant to Code of Civil Procedure section 425.16. In their moving papers, they asserted that Choy’s conduct was protected by Code of Civil Procedure section 425.16 because her acts were undertaken in furtherance of the newspapers’ constitutional right of free speech on an issue of public interest. They also asserted that respondent would be unlikely to prevail on the merits of his claims because Choy’s conduct was privileged under Civil Code section 47, subdivision (d), and because Choy did not assault respondent.
On December 28, 2007, the court issued its order denying appellants’ motion to strike. The court based its denial on the ground that “An alleged assault is not protected activity under the anti-SLAPP statutes.” This appeal followed.
DISCUSSION
I. Section 425.16 and the Standard of Review
Section 425.16, known as the anti-SLAPP statute, provides: “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or 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 phrase ‘arising from’ . . . has been interpreted to mean that ‘the act underlying the plaintiff’s cause’ or ‘the act which forms the basis for the plaintiff’s cause of action’ must have been an act in furtherance of the right of petition or free speech.” (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1001.) “The goal [of section 425.16] is to eliminate merit less or retaliatory litigation at an early stage of the proceedings.” (Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 806.)
Courts engage in a two-step process in determining whether a cause of action is subject to a special motion to strike under section 425.16. First, the court determines if the challenged cause of action arises from protected activity. If the defendant makes such a showing, the burden shifts to the plaintiff to establish, with admissible evidence, a reasonable probability of prevailing on the merits. (Navel lier v. Sletten (2002) 29 Cal.4th 82, 88.) “Only a cause of action that satisfies both prongs of the anti-SLAAP 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.” (Id. at p. 89.)
“ ‘[T]he statutory phrase “cause of action . . . arising from” means simply that the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech. [Citation.] In the anti-SLAPP context, the critical point is whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech.’ [Citation.] ‘The anti-SLAPP statute’s definitional focus is not 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.’ [Citation.]” (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1244.)
A ruling on a section 425.16 motion is reviewed de novo. (Thomas v. Quintero (2005) 126 Cal.App.4th 635, 645.) We review the record independently to determine whether the asserted cause of action arises from activity protected under the statute and, if so, whether the plaintiff has shown a probability of prevailing on the merits. (ComputerXpress, Inc. v. Jackson, supra, 93 Cal.App.4th 993, 999; Seelig v. Infinity Broadcasting Corp., supra, 97 Cal.App.4th 798, 807.)
II. Appellants’ Conduct Qualifies as Protected Activity
Appellant contends section 425.16 applies to the act of investigating and reporting on newsworthy events. We agree.
While assault, in and of itself, is not protected conduct, our inquiry does not turn solely on the allegations of the complaint. Our Supreme Court has held “that section 425.16 cannot be invoked by a defendant whose assertedly protected activity is illegal as a matter of law and, for that reason, not protected by constitutional guarantees of free speech and petition.” (Flatley v. Mauro (2006) 39 Cal.4th 299, 317, italics added.) “If the defendant concedes or the evidence conclusively establishes the conduct complained of was illegal, as a matter of law the defendant cannot make a prima facie showing the action arises from protected activity within the meaning of section 425.16.” (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc., supra, 129 Cal.App.4th 1228, 1246.) Here, appellants do not concede that Choy’s conduct was illegal, nor does respondent demonstrate that her conduct was illegal as a matter of law.
Section 425.16, subdivision (e), defines an “ ‘act in furtherance of a person’s right of petition or free speech . . . in connection with a public issue’ ” to include “any [] 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)(4).) “Reporting the news is speech subject to the protections of the First Amendment and subject to a motion brought under section 425.16, if the report concerns a public issue or an issue of public interest.” (Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, 164.)
In the present case, the trial court erred in finding that section 425.16 categorically does not apply to a complaint for assault. Our Supreme Court has stated: “The anti-SLAPP statute’s definitional focus is not 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. Evidently, ‘[t]he Legislature recognized that “all kinds of claims could achieve the objective of a SLAPP suit—to interfere with and burden the defendant’s exercise of his or her rights.” ’ [Citation.] ‘Considering the purpose of the [anti-SLAPP] provision, expressly stated, the nature or form of the action is not what is critical but rather that it is against a person who has exercised certain rights’ [citation].” (Navel lier v. Sletten, supra, 29 Cal.4th 82, 92–93.)
There can be no question that reporting on a witness who testifies at a criminal trial involving a high-level public official charged with corruption is protected activity under section 425.16, subdivision (e)(4). And the complaint contains no allegations suggesting that Choy was acting in any capacity other than as a reporter gathering information on a news story when the alleged assault occurred.
Even if the alleged assault, standing alone, would not otherwise constitute protected conduct, Choy’s actions must be evaluated in their entirety: “ ‘[W]here a cause of action alleges both protected and unprotected activity, the cause of action will be subject to section 425.16 unless the protected conduct is “merely incidental” to the unprotected conduct [citations] . . . .’ [Citations.] [Courts have observed] ‘a plaintiff cannot frustrate the purposes of the SLAPP statute through a pleading tactic of combining allegations of protected and non protected activity under the label of one “cause of action.” ’ ” (Philip son & Simon v. Gulsvig (2007) 154 Cal.App.4th 347, 358–359, quoting Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 308.)
Here, the gravamen of respondent’s action was based on appellants’ First Amendment right to report on issues of public interest. Choy’s protected conduct of reporting on respondent’s testimony at the Fallay trial was not “merely incidental” to the conduct alleged to be an assault. Moreover, Choy’s evident purpose in attempting to push aside respondent’s hand and briefcase (assuming that she, in fact, did so) was to take photographs of him for her news story. Accordingly, the complaint alleges conduct that is protected by section 425.16.
III. Respondent’s Lawsuit Lacks Merit
“ ‘[T]o establish a probability of prevailing on the claim [citation], a plaintiff responding to an anti-SLAPP motion must “ ‘state[] and substantiate[] a legally sufficient claim.’ ” [Citations.] Put another way, the plaintiff “must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” [Citations.] In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant [citation]; though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim.’ [Citation.] The ‘plaintiff “cannot simply rely on the allegations in the complaint.” ’ [Citation.]” (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc., supra, 129 Cal.App.4th 1228, 1244–1245.)
In this context, “The burden on the plaintiff is similar to the standard used in determining motions for non suit, directed verdict, or summary judgment. [Citations.] ‘In order to preserve the plaintiff’s right to a jury trial the court’s determination of the motion cannot involve a weighing of the evidence.’ [Citation.] ‘It is recognized, with the requirement that the court consider the pleadings and affidavits of the parties, the test is similar to the standard applied to evidentiary showings in summary judgment motions . . . .’ [Citation.]” (Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907–908.)
Assault is an intentional tort. “ ‘Generally speaking, an assault is a demonstration of an unlawful intent by one person to inflict immediate injury on the person of another then present.’ [Citation.] A civil action for assault is based upon an invasion of the right of a person to live without being put in fear of personal harm.” (Lowry v. Standard Oil Co. (1944) 63 Cal.App.2d 1, 6–7 [pointing a gun at another constitutes an assault unless the plaintiff knows the gun is, in fact, unloaded].) “Assault and battery are crimes as well as torts, and the statutory definition of the crimes is in the Penal Code: ‘An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.’ ” (5 Wit kin, Summary of Cal. Law (10th ed. 2005) Torts, § 381, p. 598, citing to Pen. Code, § 240.)
Restatement Second of Torts, section 21, contains a somewhat more lenient definition of the tort of assault. It provides, in relevant part: “(1) An actor is subject to liability to another for assault if [¶] (a) he acts intending to cause a harmful or offensive contact with the person of the other . . ., or an imminent apprehension of such a contact, and [¶] (b) the other is thereby put in such imminent apprehension.” The section goes on to state: “An action which is not done with the intention stated in Subsection (1, a) does not make the actor liable to the other for an apprehension caused thereby although the act involves an unreasonable risk of causing it and, therefore, would be negligent or reckless if the risk threatened bodily harm.”
Based on the Restatement formulation, to establish his claim for assault respondent would have to prove that Choy acted intending to cause a harmful or offensive contact, that he reasonably believed he was about to be touched in a harmful or offensive manner, that he did not consent to Choy’s conduct, and that he was actually harmed by it. (CACI No. 1301.)
Judicial Council of California Civil Jury Instructions (2005) CACI No. 1301 defines an offensive touching as follows: “A touching is offensive if it offends a reasonable sense of personal dignity.” (See also Rest.2d Torts, § 19.)
Appellants assert that the Penal Code section 240, and not the Restatement Second of Torts, defines the tort of assault in California. We note that CACI No. 1301 uses the Restatement’s definition in setting forth the elements of assault. For purposes of this opinion, we assume, without deciding, that the Restatement formulation applies.
The only evidence offered by respondent in opposition to appellants’ section 425.16 motion was his signed declaration, in which he states that he was made “apprehensive of harmful and offensive physical contact” when Choy allegedly reached out “and tried to push [his] hand and briefcase away” as he attempted to shield his face. These statements are unsupported by specific factual allegations pertaining to matters such as the actual distance between the parties, how suddenly Choy approached respondent, the speed of her movements, and whether she used any threatening words or gestures. Respondent’s declaration consists of evidentiary conclusions and is therefore insufficient to state the intent element of assault. (See, e.g., Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1120 [statements in declarations of legal conclusions or ultimate facts (instead of statements of evidentiary facts) are insufficient to support summary judgment].)
The second and third paragraphs of respondent’s declaration state: “2. The agent [Choy] followed me at close range as I walked out of the courthouse. The agent was trying to take pictures of my face. I told the agent to stop but the agent refused to desist. I told [sic] actions to protect myself during the incident, including turning away and raising my hands and briefcase to shield from the agent’s camera. During the incident, the agent reach [sic] out and tried to push plaintiff’s hand and briefcase away. [¶] 3. I was apprehensive of harmful and offensive physical contact by the agent. As a result, I suffered embarrassment, distress, and hurt feelings.”
Even assuming that Choy did reach out towards respondent, he offered no evidence suggesting that, in doing so, she intended to cause a harmful or offensive contact. Instead, her intent appears to have been to obtain an unobstructed photograph of respondent’s face. As he concedes, Choy had the right to take his photograph in a public place. The evidence of his subjective feelings of apprehension, standing alone, is insufficient to establish the element of Choy’s intent to commit an assault.
At oral argument, respondent conceded that Choy’s conduct did not place him in fear of physical injury or contact. Rather, his apprehension stemmed from his fear of having his photograph appear in a Chinese-language newspaper, which would expose him to receiving unwanted attention from his friends and family.
On appeal, respondent defends his complaint as being sufficient to state a cause of action for the tort of assault under the standards applicable to a general demurrer. However, as noted previously, if the first prong of the two-part test has been satisfied, a plaintiff is required to support his claim with admissible evidence to establish that he has a reasonable probability of prevailing on the merits. We conclude that he has failed to meet that burden.
DISPOSITION
The order is reversed.
We concur: Marchiano, P. J., Margulies, J.