Filed 7/20/26 Obiora v. PWxyz CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
NOEL A. OBIORA, B345075
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 24STCV03117)
PWxyz, LLC,
Defendant and
Respondent.
APPEAL from an order of the Superior Court of the County
of Los Angeles, Maureen Duffy-Lewis, Judge. Affirmed.
Noel A. Obiora, self-represented litigant, for Plaintiff and
Appellant.
Milord Law Group, Milord Arsen Keshishian and Shannon
M. Skrzynski, for Defendant and Respondent.
I. INTRODUCTION
Plaintiff Noel Obiora appeals from the trial court’s order
striking his cause of action for declaratory relief against
defendant1 pursuant to the anti-SLAPP statute (Civ. Code Proc.,
§ 425.16)2. We affirm.
II. BACKGROUND
A. Complaint
On September 9, 2024, plaintiff filed a first amended
complaint against Rare Bird Books, LLC. (Rare Bird), Robert
Tyson Cornell (Cornell), and defendant.3 As relevant to the
single cause of action that is the subject of this appeal, a claim for
declaratory relief, plaintiff alleged that Rare Bird, Cornell, and
defendant conspired to publish a negative review of plaintiff’s
first novel (the book) prior to the book’s publication.
1 Defendant is PWxyz LLC, the publisher of the trade
magazine Publishers Weekly.
2 Further statutory references are to the Code of Civil
Procedure unless otherwise stated. “An anti-SLAPP motion
presents a means by which a defendant, sued for conduct in
furtherance of the constitutional right of petition or free speech,
can require a plaintiff to establish that there is a probability of
prevailing on the claim or face early dismissal of the action.”
(Spencer v. Mowat (2020) 46 Cal.App.5th 1024, 1031 (Spencer).)
3 Cornell was the managing member of Rare Bird. He and
Rare Bird are not parties to this appeal.
2
In June 2020, plaintiff and Cornell negotiated a deal for the
publication of the book. The parties entered into a written
contract pursuant to which plaintiff granted Rare Bird exclusive
publishing rights and Rare Bird agreed to provide various
publishing services and thereafter account to plaintiff a portion of
receipts.
In April 2021, prior to the publication of the book, Rare
Bird, Cornell, and defendant conspired to discredit the book by
having defendant “publish a debilitating smear review of the
[b]ook” in its “primary trade magazine, the Publishers Weekly
Magazine/Online Review, from which bookstores determined
whether to place orders to carry the [b]ook in stores.” On April
13, 2021, defendant published an anonymous “smear review” of
the book calling it “slow-moving, unconvincing” with
“[u]nnecessary melodrama,” “courtroom scenes [that] don’t ring
true, and run-on sentences are a minus ... .” The review
incorrectly stated the book had 320 pages when in fact it had 384
pages.
Defendant “knew or should have known that the review it
was engaged to publish was a smear campaign orchestrated by …
Rare Bird …, … Cornell and their agents to discourage
bookstores from carrying the [b]ook in order to ensure that most,
if not all, sales are directed online to Rare Bird … and other
online market places that rely solely and directly on Rare Bird …
and to limit if not reduce the amount of initial investment in
printing and freight that Rare Bird … would have to make under
the [b]ook [c]ontract.”
On June 18, 2021, a former judge in the state of Illinois
published a positive review of the book that stated plaintiff
“shows great promise as a writer” although “he may have made a
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few mistakes along the way … .” Ultimately, the book did not sell
well.
B. The Anti-SLAPP Motion4
On October 15, 2024, defendant filed a special motion to
strike the declaratory relief claim pursuant to the anti-SLAPP
statute (§ 425.16, subd. (e)(4)) on the grounds that it arose from
the protected activity of publishing a book review and plaintiff
could not demonstrate a probability of prevailing at trial on his
claim.5
1. Pritzkat Declaration
In support of its motion to strike, defendant submitted the
declaration of its chief operating officer, Carl Pritzkat, who
testified as follows. “Because of [defendant’s] unquestionable
editorial integrity, it remains the most important trade
publication for the book publishing industry.” Defendant “was
never provided any instructions or guidance as to how to review
4 We deny plaintiff’s May 12, 2026, request for judicial notice
as the purported facts are premised on exhibits that were not
filed in the trial court and are not necessary for our resolution of
this appeal.
5 On October 11, 2024, defendant filed a demurrer for failure
to state an actionable claim and for improperly seeking an
advisory opinion through a cause of action styled as declaratory
relief. (§§ 430.10, subd. (e), 1060). On January 29, 2025, after
the trial court ruled on the special motion to strike, it vacated the
hearing on the demurrer as moot.
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the [b]ook, either negatively or positively, or to point out ‘run-on’
sentences in the [b]ook.”
Rare Bird uploaded a copy of the book to defendant’s review
portal on March 22, 2021. The submission form included a press
release pdf document, which contained the information that the
book was 320 pages in length. “There was no other
correspondence with the [b]ook submission.” No one from
defendant communicated with Rare Bird about plaintiff or the
book.
2. Cornell Declaration
Defendant also submitted the declaration of Cornell, who
testified as follows. “Other than uploading the [b]ook, no one at
Rare Bird has at any time communicated with [defendant]
regarding the [b]ook or Rare Bird’s agreement with [plaintiff].”
The copy of the book that Rare Bird uploaded to defendant
contained 384 pages. It is not uncommon for book reviewers to
use the cataloging information for the page count; the cataloging
information is an estimate created in “[t]he early process” before
“proofing and layout design.”
3. Attorney Declaration
Defendant submitted the declaration of its attorney who
provided 23 documents—including articles, advertisements, and
promotional materials for the book—to demonstrate that plaintiff
had publicized his work.
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C. Opposition to Motion to Strike
On January 14, 2025, plaintiff submitted his opposition to
the motion to strike, arguing that even if the publication of the
book review was protected conduct, the cause of action against
defendant also alleged unprotected activity “sounding in
negligence and fraudulent conceit before the [b]ook review was
published, and as such were not protected activity.” Plaintiff also
argued that if the court determined that defendant’s wrongful
conduct was protected under prong one, his claim nevertheless
had the requisite minimal merit to satisfy prong two of the anti-
SLAPP analysis.
To support his merits argument, plaintiff submitted his
own declaration stating that Cornell sent him an April 4, 2021,
email asking for his final approval of the book6, which was to be
released on June 21, 2021. He provided that email, a photocopy
of the tracking label of the book, and information which explained
the tracking code showed the galley was printed on April 6, 2021.
Plaintiff provided an “excerpt of [defendant’s] review
practices from [defendant’s] website, under a section titled:
About Us” that stated “the magazine’s book review section ...
[contains] advance reviews, written on the basis of early galleys
of the book, published two to four months before a book’s
publication date.” (Boldface omitted.)
6 Plaintiff argues in his opening brief that “whatever was
uploaded to [defendant’s] automated submission web form was
not the published work.” He claims he and Rare Bird were
exchanging emails as late as March 27, 2021, with “critical edits”
to the book, but provided no citation to the evidence that supports
that assertion.
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D. Court’s Ruling
On January 29, 2025, the trial court granted the motion to
strike. The court ruled defendant met its burden to show that
plaintiff sought relief based on defendant’s publication of a book
review, which was “protected activity under the First
Amendment.” It also found plaintiff failed to meet his burden to
demonstrate his claim was legally sufficient and factually
substantiated. Finally, the court explained that plaintiff’s
defamation allegations had no merit because he failed to show
actual malice.
On March 17, 2025, plaintiff timely filed a notice of appeal.
III. DISCUSSION
A. Anti-SLAPP Statute
“Resolution of an anti-SLAPP motion involves two steps.
First, the defendant must establish that the challenged claim
arises from activity protected by section 425.16. [Citation.] 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. [Our Supreme Court has] described this
second step as a ‘summary-judgment-like procedure.’ [Citation.]
The court does not weigh evidence or resolve conflicting factual
claims. Its inquiry is limited to whether the plaintiff has stated a
legally sufficient claim and made a prima facie factual showing
sufficient to sustain a favorable judgment. It accepts the
plaintiff’s evidence as true, and evaluates the defendant’s
showing only to determine if it defeats the plaintiff’s claim as a
matter of law. [Citation.] ‘[C]laims with the requisite minimal
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merit may proceed.’ [Citation.]” (Baral v. Schnitt (2016)
1 Cal.5th 376, 384–385, fn. omitted (Baral).) “Our review of the
trial court’s ruling on an anti-SLAPP motion, including any
issues of statutory interpretation presented on appeal, is de novo.
[Citations.]” (Doe v. Ledor (2023) 97 Cal.App.5th 731, 741.)
B. Prong One: Protected Activity
“At this first step, courts are to ‘consider the elements of
the challenged claim and what actions by the defendant supply
those elements and consequently form the basis for liability.’
[Citation.] The defendant’s burden is to identify what acts each
challenged claim rests on and to show how those acts are
protected under a statutorily defined category of protected
activity. [Citation.]” (Bonni v. St. Joseph Health System (2021)
11 Cal.5th 995, 1009.) “[A] claim may be struck only if the speech
or petitioning activity itself is the wrong complained of, and not
just evidence of liability or a step leading to some different act for
which liability is asserted.” (Park v. Board of Trustees of
California State University (2017) 2 Cal.5th 1057, 1060.) When a
plaintiff alleges a tort claim under a conspiracy theory, the court
focuses on the acts which satisfy the elements of the tort, not the
acts which provide evidence of participation in the conspiracy.
(Spencer, supra, 46 Cal.App.5th at pp. 1037, 1040.) In other
words, the tortious acts the defendants allegedly conspired to
commit are the acts upon which the claims are based. (Id. at
p. 1040.)
Plaintiff alleged that defendant conspired with others to
engage in various torts. That claim, however, was predicated on
defendant’s publication of a negative book review. Plaintiff does
not dispute that the publication of a book review is “conduct in
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furtherance of the exercise of the constitutional right … of free
speech in connection with a public issue or an issue of public
interest” protected under section 425.16, subd. (e)(4). (See
Moldea v. New York Times Co. (D.C. Cir. 1994) 22 F.3d 310, 315
[adopting a “‘supportable interpretation’” standard to whether to
grant a book review First Amendment protection: “a critic’s
interpretation must be rationally supportable by reference to the
actual text he or she is evaluating”]; Mitchell v. Twin Galaxies,
LLC (2021) 70 Cal.App.5th 207, 217 [plaintiff conceded
defendant’s allegedly defamatory statements were protected
speech under section 425.16, subd. (e)(4)]; Overstock.com, Inc. v.
Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699 [same];
Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 24 [website
containing allegedly defamatory review of plastic surgeon was
protected speech under section 425.16, subd. (e)(4)].) Instead,
plaintiff contends that the burden is on defendant to show that
the protected activity is not merely incidental to the unprotected
activity plaintiff has alleged defendant committed.7 (See Baral,
supra, 1 Cal.5th at p. 382.) According to plaintiff, the negative
book review is evidence of defendant’s participation in a
conspiracy with the codefendants to commit the torts of unfair
trade practices and tortious interference with prospective
advantage identified in the sixth cause of action but not alleged
as separate causes of action against any party. (Spencer, supra,
46 Cal.App.5th at p. 1040 [in the context of a civil conspiracy to
7 In addition, plaintiff argues for the first time on appeal
that the commercial speech exemption (§ 425.17, subd. (c)(1))
applies here to bar dismissal of the allegations against defendant.
This argument is forfeited. (In re Marriage of Eben-King & King
(2000) 80 Cal.App.4th 92, 117.)
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commit assault, battery, and public nuisance, defendants’
protected activity of petitioning the city manager and text
messaging was incidental to the unprotected offending conduct of
the coconspirators and was offered only as evidence of
defendants’ membership in the conspiracy].)
Plaintiff analogizes his case to Spencer, supra, 46
Cal.App.5th 1024 and argues defendant is vicariously liable for
the unprotected tortious acts committed by codefendants Rare
Bird and Cornell because plaintiff has alleged a conspiracy. “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.” (Navellier v.
Sletten (2002) 29 Cal.4th 82, 92.) Here, the conduct about which
plaintiff complains is defendant’s review of a book that was not
yet approved by the author and publication of a review that
plaintiff alleged was disparaging. We therefore reject plaintiff’s
characterization of his own cause of action as “mixed” with
unprotected activity. (Contreras v. Dowling (2016) 5 Cal.App.5th
394, 411 [“the only acts [defendant] has been shown to have
committed were giving advice to a client and writing a letter to
opposing counsel. These are unquestionably protected
activities”].)
C. Prong Two: Probability of Success
“To succeed in opposing a special motion to strike, the
nonmoving party must ‘demonstrate both that the claim is legally
sufficient and that there is sufficient evidence to establish a
prima facie case with respect to the claim.’ [Citation.] ‘[C]laims
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with the requisite minimal merit may proceed.’ [Citation.] The
moving party prevails by ‘defeat[ing]’ the ‘claim as a matter of
law’ [citation] in ‘a summary-judgment-like procedure’ [citation].”
(Olson v. Doe (2022) 12 Cal.5th 669, 679.)
Plaintiff asserted a single cause of action against defendant
for declaratory relief, alleging it “conspired [with the other
defendants] to discredit the [b]ook in reviews” in its magazine
before the book was published and caused plaintiff and the public
harm. Section 1060 authorizes declaratory relief for an “actual
controversy” relating to the rights of parties. It is designed to
operate prospectively to declare future rights—not to provide
redress for past wrongs. (Babb v. Superior Court (1971) 3 Cal.3d
841, 848.) “It serves to set controversies at rest before they lead
to repudiation of obligations, invasion of rights or commission of
wrongs. In short, the remedy is to be used in the interests of
preventive justice, to declare rights rather than execute them.
[Citation.] [¶] ‘To qualify for declaratory relief, [a party] would
have to demonstrate its action presented two essential elements:
“(1) a proper subject of declaratory relief, and (2) an actual
controversy involving justiciable questions relating to [the
party’s] rights or obligations … .”’ [Citation.]” (Jolley v. Chase
Home Finance, LLC (2013) 213 Cal.App.4th 872, 909 (Jolley).)
There is no need for a declaration of rights when, as here,
the alleged harm has already occurred. (See Jolley, supra, 213
Cal.App.4th at p. 909; Travers v. Louden (1967) 254 Cal.App.2d
926, 931.) “‘If there is a controversy that calls for a declaration of
rights, it is no objection that past wrongs are also to be redressed;
but there is no basis for declaratory relief where only past wrongs
are involved.’” (Osseous Technologies of America, Inc. v.
DiscoveryOrtho Partners LLC (2010) 191 Cal.App.4th 357, 366.)
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Plaintiff contends that his cause of action against
defendant involves more than past wrongs because the book
remains available for purchase and the review appears “when
anyone does an online search for it or for books on subjects like it
or for [plaintiff] himself.” In addition, “[a]s a writer, it is
inevitable that [defendant] and [plaintiff] will meet again and
engage in a similar transaction.” We do not agree that these
factual statements, if true, create a continuing relationship
between plaintiff and defendant such that an action for
declaratory relief alleging defendant conspired to commit the
torts of defamation, unfair competition, unfair and deceptive
trade practices, and tortious interference with a prospective
economic relationship is appropriate here. (Compare Warren v.
Kaiser Foundation Health Plan, Inc. (1975) 47 Cal.App.3d 678,
684 [a declaratory relief cause of action can be appropriate where
“a relationship between the parties continues so that a
declaration may guide their future conduct”].)
If plaintiff has a fully matured cause of action he “must
seek the remedy of damages, and not pursue a declaratory relief
claim.” (Canova v. Trustees of Imperial Irrigation Dist. Employee
Pension Plan (2007) 150 Cal.App.4th 1487, 1497.) The cause of
action for declaratory relief therefore is legally insufficient.
(§ 425.16, subd. (b)(1).)
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IV. DISPOSITION
The order is affirmed. Defendant is entitled to its costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM (D.), J.
We concur:
BAKER, Acting P. J.
MOOR, J.
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