Bander v. Balita Media

 

 

 

 

 

 

 

 

Filed 7/16/13 
Bander v. Balita Media CA2/2

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.

 

 

 

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND
APPELLATE DISTRICT

DIVISION
TWO

 
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JOEL BANDER,               Plaintiff and Appellant,               v.     BALITA MEDIA, INC., et al.,               Defendants and Respondents.

B245031         (Los Angeles County       Super. Ct. No. BC483767)

 

 

 

            APPEAL
from a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County.  Richard L.
Fruin, Jr., Judge.  Reversed.

 

            Joel
Bander, in pro. per.; The Luti Law Firm and Anthony Luti for Plaintiff and
Appellant.

 

Stocker &
Lancaster and Michael J. Lancaster for Defendants and Respondents.

 

______________________

 

 

 

Plaintiff and appellant Joel Bander (plaintiff) brought an href="http://www.mcmillanlaw.com/">invasion of privacy action against
defendants and respondents Balita Media, Inc. (Balita), Anthony Allen, Luchie
Mendoza Allen, and Rhony Laigo (collectively defendants) based upon articles
published in defendants’ news publications and/or news Web sites.  Defendants responded by filing a special href="http://www.fearnotlaw.com/">motion to strike the complaint pursuant
to Code of Civil Procedure section 425.16,href="#_ftn1" name="_ftnref1" title="">^[1] California’s anti-SLAPPhref="#_ftn2" name="_ftnref2" title="">^[2] statute. 
Plaintiff opposed defendants’ motion, arguing, inter alia, that the
anti-SLAPP statute does not apply pursuant to section 425.17.  The trial court granted defendants’ motion,
and plaintiff appeals.

Plaintiff
established that, pursuant to section 425.17, subdivision (c), defendants were
precluded from bringing an anti-SLAPP motion. 
The burden then shifted back to defendants to establish that section
425.17 did not apply.  Because defendants
did not satisfy their burden pursuant to section 425.17, subdivision (d)(2), we
reverse.

>FACTUAL AND PROCEDURAL BACKGROUND

The
parties

            Plaintiff
is an attorney whose clientele is largely Filipino.  He has also represented numerous
Filipino-American newspapers and publishers. 
Currently, he participates in the operation of PinoyWatchDog.com, which
is a competitor of Balita.

            Balita
is some sort of news publisher.  It
publishes news stories in Balita Weekend Newspaper and Balita.com.  Balita’s newspaper is directed to the
Filipino community.  In fact, it sells
advertising in its newspaper and Web site. 
One of its advertisers is James G. Beirne (Beirne), an attorney who
competes with plaintiff.  Anthony Allen
is Balita’s corporate secretary; Luchie Mendoza Allen is Balita’s general
manager and publisher; and Rhony Laigo is a news reporter and editor for
Balita.

            As
is evident from the appellate record and the parties’ appellate briefs, there
is tremendous animosity between the parties.

Plaintiff’s
complaint; defendants’ motion to strike

            On
May 3, 2012, plaintiff filed
the instant action against defendants. 
His complaint alleges one cause of action:  invasion of privacy—false light in the public
eye.  His claims are based upon four
articles published in defendants’ “various Filipino American newspapers
appearing two times a week widely distributed for free at Filipino markets,
business[es] and restaurants in and around Los Angeles
and Orange County.”  The October
29, 2011, article is titled “800 Homeowners Claim They Were ‘Duped’
by Bander Law Firm”  The November 9, 2011, article is titled
“L.A. Sheriff’s Dept. Conducts Criminal Probe on Joel Bander.”  The March
3, 2012, article is titled “Bander faces suspension.”  And, the March 7, 2012, article is titled “Bander Pleads No
Contest.”  Each of these articles was
published on the front page of a Balita publication and allegedly contains
false and misleading information about plaintiff and his law practice.

            In
response, defendants served a special motion to strike the complaint pursuant
to section 425.16.  First, they argued
that each claim in plaintiff’s complaint arose from defendants’ exercise of
their right to free speech.  Second, they
asserted that plaintiff could not establish a probability of prevailing on his
claims.

            Plaintiff
opposed defendants’ motion.  As is
relevant to this appeal, he argued that defendants were barred from bringing an
anti-SLAPP motion pursuant to section 425.17, subdivision (c).  After all, defendants are in the business of
selling advertising and the statements made in defendants’ newspaper were about
plaintiff’s operations and services. 
Because plaintiff and defendants are competitors, and all of the speech
at issue in this lawsuit was generated for business reasons and competition,
defendants were not entitled to the protections of section 425.16.

            Defendants
filed a reply brief, but it is silent regarding plaintiff’s arguments based
upon section 425.17.

Trial
court order

            On
August 21, 2012, the trial
court provided the parties with a detailed written tentative ruling.  That tentative order, however, did not
address whether defendants’ anti-SLAPP motion was barred by section 425.17. 

            After
hearing oral argument, taking the matter under submission, and considering
supplemental memoranda filed by the parties, the trial court granted
defendants’ motion.

            Judgment
was entered, and plaintiff’s timely appeal ensued.

>DISCUSSION

I. 
Standard of Review

            “We
review the trial court’s rulings on a SLAPP motion independently under a
de novo standard of review. 
[Citation.]”  (>Kajima Engineering & Construction, Inc.
v. City of Los
Angeles (2002) 95 Cal.App.4th 921, 929.)

II. 
The Anti-SLAPP Statute

            “A
SLAPP is a civil lawsuit that is aimed at preventing citizens from exercising
their political rights or punishing those who have done so.”  (Simpson
Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21 (Simpson).)  “In 1992, out of
concern over ‘a disturbing increase’ in these types of lawsuits, the
Legislature enacted section 425.16, the anti-SLAPP statute.”  (Ibid.;
see § 425.16, subd. (a).)  Section
425.16, subdivision (b)(1) 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 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.” 
The statute “posits . . . a two-step process for
determining whether an action is a SLAPP.” 
(Navellier v. Sletten (2002)
29 Cal.4th 82, 88.)  First, the defendant
bringing the special motion to strike must make a prima facie showing that the
anti-SLAPP statute applies to the claims that are the subject of the
motion.  (Wilcox v. Superior Court, supra,
27 Cal.App.4th at p. 819.)  Once a
moving defendant has met its burden, the motion will be granted (and the claims
stricken) unless the court determines that the plaintiff has established a
probability of prevailing on the claim. 
(DuPont Merck Pharmaceutical Co.
v. Superior Court (2000) 78 Cal.App.4th 562, 567–568.)

            “In
2003, concerned about the ‘disturbing abuse’ of the anti-SLAPP statute, the
Legislature enacted section 425.17 to exempt certain actions from it.”  (Simpson,
supra, 49 Cal.4th at p. 21; see
also Northern Cal. Carpenters Regional
Council v. Warmington Hercules Associates (2004) 124 Cal.App.4th 296,
299.)  Specifically, “[s]ection 425.16
does not apply to any cause of action brought against a person primarily
engaged in the business of selling or leasing goods or services, including, but
not limited to, insurance, securities, or financial instruments, arising from
any statement or conduct by that person if both of the following conditions
exist:  [¶]  (1) The statement or conduct consists of
representations of fact about that person’s or a business competitor’s business
operations, goods, or services, that is made for the purpose of obtaining
approval for, promoting, or securing sales or leases of, or commercial
transactions in, the person’s goods or services, or the statement or conduct
was made in the course of delivering the person’s goods or services.  [¶] 
(2)  The intended audience is an
actual or potential buyer or customer, or a person likely to repeat the statement
to, or otherwise influence, an actual or potential buyer or
customer, . . .”  (§
425.17, subd. (c).)

            Section
425.17, subdivision (c), exempts “from the anti-SLAPP law a cause of action
arising from commercial speech when (1) the cause of action is against a person
primarily engaged in the business of selling or leasing goods or services; (2)
the cause of action arises from a statement or conduct by that person
consisting of representations of fact about that person’s or a business
competitor’s business operations, goods, or services; (3) the statement or
conduct was made either for the purpose of obtaining approval for, promoting,
or securing sales or leases of, or commercial transactions in, the person’s
goods or services or in the course of delivering the person’s goods or
services; and (4) the intended audience for the statement or conduct meets the
definition set forth in section 425.17(c)(2).” 
(Simpson, supra, 49 Cal.4th at p. 30.) 
This “commercial speech exemption” is a statutory exception to section
425.16, and plaintiff bears the burden of proving its applicability.  (Simpson,
supra, 49 Cal.4th at pp. 22, 26.)

Plaintiff met his
burden in establishing that the section 425.17 exception applies and precludes
defendants from bringing a motion to strike pursuant to section 425.16.  Plaintiff’s cause of action (invasion of
privacy—false light) is against defendants, who are primarily engaged in the
business of selling goods or services, such as advertisers, including
plaintiff’s nemesis, Beirne.  Plaintiff’s
cause of action arises from statements made about plaintiff and his practice of
law in the course of promoting plaintiff’s competitors and in the course of
delivering their publications.  And, the
intended audience is the same—members of the Filipino-American community.

Defendants do not
dispute the foregoing.  Instead, for the
first time, on appeal, they direct us to subdivision (d)(2) of section 425.17
and assert in one paragraph of their 63-page brief, that section 425.17 does
not apply.  Just as plaintiff bore the
burden of establishing that section 425.17 applied, once plaintiff satisfied
his responsibility, the burden shifted to defendants to establish that the
exception to the exemption did apply.  (>Simpson, supra, 49 Cal.4th at p. 23.) 
Given that defendants neglected to raise this argument below, we readily
conclude that they did not meet their burden. 
Our analysis could stop here.  (>Habitat Trust for Wildlife, Inc. v. City of
Rancho Cucamonga (2009) 175 Cal.App.4th 1306, 1325, 1344.) 

Even if we were to
exercise our discretion and consider this argument, we would arrive at the same
conclusion:  Defendants did not establish
that section 425.17, subdivision (d)(2), applies.  That statute provides, in relevant part, that
subdivision (c) of section 425.17 does not apply to “[a]ny action against any
person or entity based upon the creation, dissemination, exhibition,
advertisement, or other similar promotion of any dramatic, literary, musical,
political, or artistic work . . . or an article published in a
newspaper or magazine of general circulation.” 
(§ 425.17, subd. (d)(2).)  While
defendants claim that there is no advertising involved and that plaintiff’s
action is based upon an article published in a newspaper or magazine of general
circulation, they offer no evidence to support their assertion.  There is no evidence that the Balita
publications at issue are “newspaper[s] of general circulation,” as that term
is defined by Government Code section 6000.href="#_ftn3" name="_ftnref3" title="">^[3]  There is no evidence, for example, of a bona
fide subscription list of paying subscribers. 
Nor do defendants offer any legal authority in support of their contention
that Balita is a newspaper and a news Web site.  (Benach
v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.)  It follows that defendants did not meet their
burden.

During oral
argument, the court raised this issue of lack of evidence with counsel.  Counsel for defendants replied that the
complaint and plaintiff’s declaration provided evidence that defendants’
newspaper was a “newspaper of general circulation.”  This argument is fatally flawed.  A complaint is not evidence.  (See, e.g., Sheard v. Superior Court (1974) 40 Cal.App.3d 207, 212; >Nagel v. Twin Laboratories, Inc. (2003)
109 Cal.App.4th 39, 45.)  And, even if it
were evidence, nothing in the complaint indicates that defendants’ newspaper
meets the statutory definition; at most, the paragraphs of the complaint cited
by counsel allege that because “defendants’ newspaper circulated in Filipino
markets and restaurants, the publicity requirement is satisfied.”  As for plaintiff’s declaration, while it in
large part repeats allegations of the complaint, again those allegations only
refer to the “publicity requirement.” 
Nothing therein provides evidence that defendants’ newspaper falls
within the scope of the phrase “newspaper of general circulation.”

Finally, defendants’
counsel also intonated at oral argument that Barrett v. Rosenthal (2006) 40 Cal.4th 33 holds that a newspaper on
the World Wide Web constitutes a newspaper of general circulation; because
defendants’ newspaper is available on the Internet, then it must be a newspaper
of general circulation.  This was not
argued in defendants’ respondent’s brief, presumably because that is not what >Barrett holds.  All Barrett
holds is that “Web sites accessible to the public . . . are
‘public forums’ for purposes of the anti-SLAPP statute.”  (Barrett,
supra, at p. 41, fn. 4.)

>DISPOSITION

            The
judgment is reversed.  Plaintiff is
entitled to costs on appeal.

            NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.

 

 

 

 

                                                                        __________________________,
Acting P. J.

                                                                                    ASHMANN-GERST

 

 

We concur:

 

 

 

_____________________________, J.

CHAVEZ

 

 

 

____________________________, J.href="#_ftn4" name="_ftnref4" title="">^*

FERNS