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self-study / Constitutional Law

May 24, 2024

None of our business: Recent anti-SLAPP cases on the distinctions between public and private issues

Glendale Courthouse

Ashfaq G. Chowdhury

Judge,

Columbia Law School, 2000

Few areas of California law seem to cause as much confusion and consternation as our anti-SLAPP regime. (C.C.P. § 425.16.)

The statute states that it is to be “construed broadly.” (§ 425.16, subd. (a).) It’s worth considering subsection (a) of the statute, which sets out a kind of preamble:

“The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.”

(Id. [emphasis added].)

The statute applies when “[a] cause of action against a person aris[es] from any act of that person in furtherance of the person’s right of petition or free speech under the United States or the California Constitution in connection with a public issue . …” (§ 425.16, subd. (b)(1) [emphasis added].) When a cause of action meets this criteria, it is “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.” (Id.)

Section 425.16, subd. (e) sets out four (non-exhaustive) categories of “act[s] in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue . …” The first two categories involve statements “before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law” (§ 425.16, subd. (e)(1)) and statements “made in connection with an issue under consideration or review by a legislative, executive, or judicial body or any other official proceeding authorized by law.” (§ 425.16, subd. (e)(2).) The second two categories are broader, involving statements “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 “any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (§ 425.16, subd. (e)(4).)

The word “public” appears eleven times in § 425.16. The statute repeatedly emphasizes that it is directed toward statements or conduct involving “public issue[s]” or issues of “public interest.” (§ 425.16, subd. (e).)

This statutory framework is helpful in understanding two recent decisions from the California Court of Appeals, which dealt with the distinction between statements about public issues versus statements about private issues, a distinction that lawyers and courts appear to have struggled with when construing § 425.16.

The first recent decision, Gazal v. Echeverry (2024) 101 Cal.App.5th 34, 419 Cal.Rptr.3d 587, 590 involved a claim by plaintiff that he was duped by defendant’s homily, given while serving as a deacon at plaintiff’s church, into donating more than $1 million for a destitute family to purchase a car and home, when the money was in fact spent by a nonprofit corporation run by the deacon’s wife. The plaintiff also alleged that the deacon spoke privately to “a line of parishioners” in the church after the homily, to give details about how donations would be used to help the destitute family. (Id.)

The plaintiff asserted claims for “breach of contract, breach of fiduciary duty, three fraud-related causes of action, elder financial abuse, unlawful solicitation, unfair business practices, and an accounting” against the deacon, his wife, and the non-profit corporation. (Id.)

The defendants filed an anti-SLAPP motion, which the trial court denied “on the ground that plaintiff’s claims did not arise from protected activity.” (Gazal, 319 Cal.Rptr.3d at 592.)

On appeal, the court considered whether the claims arose from “a ‘written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest’ (§ 425.16, subd. (e)(3)), or … from ‘any ... conduct in furtherance of the exercise of the constitutional right ... of free speech in connection with a public issue or an issue of public interest’ (§ 425.16, subd. (e)(4), the catchall provision).” (Id.)

Defendants argued that plaintiff’s complaint arose “from protected religious preaching.” (Id.) They argued that “both the homily and the conversation between the deacon and plaintiff in the church after the homily were protected under [§ 425.16, subd. (e)(3)], as statements ‘made in a place open to the public or a public forum in connection with an issue of public interest.’” (Id.) “As for the subsequent private discussions, defendants argue[d] those conversations ‘cannot form a distinct claim for relief and thus are incidental.’” (Id.) Defendants argued the private discussions were protected under § 425.16, subd. (e)(4)’s “catchall provision,” which covers “any other conduct” in furtherance of free-speech rights “in connection with a public issue or an issue of public interest.” (Id.)

The Court of Appeal rejected these arguments, noting that “the problem for defendants is that plaintiff’s claims do not arise from the homily.” (Id. at 593.) “[Plaintiff’s] claims arise from the alleged misconduct that occurred after delivery of the homily. Conduct does not become protected activity simply because it follows protected activity.” (Id.)

As to the private discussions the deacon had with parishioners in church after the homily, the court concluded that those conversations were not about a public issue or a matter of public interest:

“The private discussions that ensued after the homily and after plaintiff’s offer to donate funds for a house for the destitute family do not satisfy the [requirement that the statements pertain to an issue of public interest]. The issue of public interest discussed between the parties was housing for a homeless family. But there is no functional relationship between those private discussions and the public conversation about some matter of public interest. … The private discussions were not in connection with a public issue because they did not contribute[ ] to—that is, participat[e] in or further[ ]—some public conversation on the issue. …”

(Id. at 594-95 [citations and quotation marks omitted] [quoting FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 150 [“it is not enough that the statement refers to a subject of widespread public interest; the statement must in some manner itself contribute to the public debate”]].)

The Gazal court noted that “the complaint did not allege a broader discussion or public debate over homelessness, its causes or solutions; rather, the Complaint alleges a narrowly focused effort to help a single family of five who were experiencing homelessness after an episode of domestic violence. In short, … the parties’ private communications are too tenuously tethered to the issues of public interest they implicate, and too remotely connected to the public conversation about those issues, to merit protection under the catchall provision.” (Id. at 595.)

The second recent decision, Dubac v. Itkoff (2024) 101 Cal.App.5th 540, 320 Cal.Rprt.3d 349, 350 involved a homeowners association at a six-unit condominium complex, where “one [resident] couple kept emailing insults at their neighbor.” The court concluded that, “[f]or anti-SLAPP purposes, this quarrel was not speech in connection with a public issue.” (Id.)

Dubac involved a deteriorating relationship between the plaintiff and defendant couple, all of whom owned condomiums in the same six-unit building. The defendants made a number of derogatory statements about plaintiff complaining of plaintiff’s alleged bigotry, accusing him of harassing their child, and other misconduct. The bulk of these statements were made to other members of the Homeowners Association at the condominium.

The plaintiff sued the defendant couple for defamation, infliction of emotional distress, interference with economic advantage, and civil harassment. The defendants filed an anti-SLAPP motion, which was in large part denied.

The Court of Appeal affirmed. The court began by noting that “[t]he anti-SLAPP statute aims to encourage participation in matters of public significance.” (Dubac, supra, 320 Cal.Rptr.3d 349, 354.) The court further observed that “California’s anti-SLAPP jurisprudence has struggled to define what makes something an issue of public, rather than private, interest. … It has been a struggle because the distinction between public and private is notoriously difficult to state in clear and simple terms.” (Id. at 354 [citation and quotation marks omitted].)

The court turned to the factors set out in Geiser v. Kuhns (2022) 13 Cal.5th 1238, 1248, to help determine when a statement implicates a public interest:

“1. The statement concerns a person or entity in the public eye;

2. the statement concerns conduct that could directly affect a large number of people beyond the direct participants;

3. the statement concerns a topic of widespread public interest;

4. the issue is of concern to a substantial number of people; or

5. the issue has been the subject of extensive media coverage.”

(Dubac, supra, 320 Cal.Rptr.3d at 355 [quoting Geiser, supra, 13 Cal.5th at 1248].)

The court noted that “[f]actors two, three, and four … repeat variations on a consistent theme: they stress the significance of how many people are affected by, or are interested in, a purportedly public issue.” (Id.) Further, in the court’s view, “the Geiser decision also emphasized the importance of considering contextual factors, including the identity and number of speakers, the audience, the location of the communication, and the purpose and timing of the communication. (Id.) “The ultimate question,” in the court’s view, was “whether a statement “furthered public discussion of the public issues it implicated.” (Id.)

Considering the Geiser factors, the court concluded that the statements in the instant case pertained to a “personal feud with [the] neighbor” plaintiff, and “not an exchange contributing to public discussion of public issues.” (Id. at 355.) The court noted that the audience was confined essentially to the “small homeowners association” and that “[t]he general public did not and could not know about this intra-building tiff. The audience was always tiny. It was never the ‘public.’” (Id.)

The court rejected the defendants’ argument that the dispute “was in service of the governance of a homeowners association” and therefore a “public issue”:

“An objective observer might be puzzled to hear a homeowners association can be the stage for public debate of a public issue. Homeowners associations in some sense are the opposite of “public”: they are intensely private; you must buy your way in, often at high cost, to a place that excludes the general public. The point of the organization is to exercise control over private property to which the public has no right of access.

“But any kind of collective governance can call forth another notion of ‘public,’ which is that group control differs from strictly individual power. Homeowners associations can be a type of small-scale democracy, where people meet in something like a town hall and, through discussion and voting, settle differences and decide their collective fate. This has a sort of ‘public’ aspect.

“This aspect, however, suffers a problem. All ‘private’ organizations govern themselves in some collective way: clubs, hobby groups, sports teams, and so on. Every bridge foursome and chess club has some way to decide when and where to meet, whom to include, and what rules to follow. Is all this private ordering and governance really ‘public’? To read ‘public’ so broadly would tend to make most things ‘private’ into something ‘public.’ And expanding ‘public’ to include every bridge group would tend to drain all content from a word of limitation. This method of statutory interpretation is unsound.”

(Id. at 357.)

The court reviewed several decisions that had rejected “efforts to elevate personal squabbles into ‘public’ issues,” such as Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1127, where two men belonged to the National Token Collectors’ Association, which, among other things, published a monthly newsletter called Talkin’ Tokens. The two men carried their dispute into the newsletter, with the defendant calling plaintiff “a thief and a chronic liar” with a “violent temper.” (Dubac, supra, 320 Cal.Rptr.3d at 358.) The defendant claimed his attacks on plaintiff “connected to a … public issue” because he was “warning others of a suspected theft so they can secure their property from the alleged wrongdoer, [thus serving] the public interest in deterring crime and protecting the interests of others who could suffer such harm.” (Id. [quoting Weinberg, supra, 110 Cal.App.4th at 1126].) The court in Weinberg rejected defendant’s anti-SLAPP argument, noting that the “communications in the case were among only a ‘small group of private parties,’” and thus did not involve a “public issue.” (Id. [quoting Weinberg, supra, 110 Cal.App.4th at 1132].)

The court also noted the decisions in:

· Abuemeira v. Stephens (2016) 246 Cal.App.4th 1291, 1296, which involved “an episode of road rage [that] led to fisticuffs and horrible name-calling,” but where the “unseemly private brawl” involving “private, anonymous” parties did not raise a public issue for anti-SLAPP purposes. (Dubac, supra, 320 Cal.Rptr.3d at 358-59 [quoting Abuemeira, supra, 246 Cal.App.4th at 1294, 1298].)

· Workman v. Colichman (2019) 33 Cal.App.5th 1039, 1042, where defendant sent an email to his neighbor’s real-estate agent saying that he was planning an addition that would interfere with the view from plaintiff neighbor’s house, causing the pending sale of plaintiff’s house to fall through. When plaintiff sued and defendant argued that his email to the real-estate agent involved a matter of public interest, the court rejected the argument, stating that “[i]nformation about the views from a private residence affecting only those directly interested in buying or selling that house is not an issue of public interest.” (Id.)

· Jeppson v. Ley (2020) 44 Cal.App.5th 845, which involved a situation where one neighbor’s dog killed another’s cat. The defendant posted on a neighborhood blog about the incident and referred to plaintiff’s alleged vandalism of another neighbor’s tree. The court rejected defendant’s argument that the neighborhood blog post involved a public issue for anti-SLAPP purposes, as the dispute was private and “strictly local.” (Id. at 856-57.)

· Woodhill Ventures, LLC v. Yang (2021) 68 Cal.App.5th 624, 627, where a customer displeased with a cake ranted against the bakery, resulting in death threats to the bakers. When the bakery sued and defendant argued that the dispute involved a public issue for anti-SLAPP purposes, the court rejected the argument, as the issue was merely a private dispute.

The point that Gazal, Dubac, and the other cases discussed above make is that, for the anti-SLAPP statute to be implicated, the statements or acts at issue must involve a public issue, for the purposes of falling within § 425.16, subd. (e)(3) or (4). These cases also appear to make clear that it is not enough that a statement merely touch upon or tangentially relate to an issue of public interest: the statements at issue must contribute to, participate in, or advance the discussion of the matter of public interest. (See FilmOn, supra, 7 Cal.5th at 150.)

As noted in Dubac, this is an important requirement: without it, the catchall provisions of § 425.16, subd. (e) would potentially cover almost any statements or conduct. (Dubac, supra, 320 Cal.Rptr.3d at 357 [“There have to be limits”].) As the cases reviewed here emphasize, the anti-SLAPP regime was meant to protect statements or acts about public issues—not any and all statements and conduct.

These cases suggest it is useful to look to the structure of the statute, and its repeated emphasis that the statute is concerned with “public issues” and “matters of public significance.” (§ 425.16, subd. (a) & (b).) This requirement that the conduct at issue be “in connection with a public issue” appears to apply to all four categories of statements set out in § 425.16, subd. (e), including statements or acts made during or in connection with governmental proceedings. (§ 425.16, subd. (e)(1) & (2).) (Does the simple act of filing a claim in court make the claim a matter of “public significance”?) We’ll take a look at § 425.16, subd. (e)’s governmental-proceedings categories next time.

#1468

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