Trivedi Foundation v. Morrisette
Filed 4/25/13 Trivedi Foundation v. Morrisette CA2/7
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
TRIVEDI FOUNDATION, INC.,
Plaintiff and Respondent,
v.
MICHELE MORRISETTE,
Defendant and Appellant.
B241096
(Los Angeles
County
Super. Ct.
No. BC473236)
APPEAL
from an order of the Superior Court
of
County. Mel Red
Recana, Judge. Reversed.
Magnanimo
& Dean and Lauren A. Dean for Defendant and Appellant.
Kronenberger
Rosenfeld, Karl S. Kronenberger and Jeffrey M. Rosenfeld for Plaintiff and
Respondent.
_____________________________
This is an
appeal from an order denying a special motion
to strike pursuant to Code of Civil Procedure section 425.16. Because the defendant demonstrated that the
plaintiff’s claims arise from “protected
activity†within the meaning of this statute but the plaintiff failed to
meet its burden to establish the probability of prevailing on its claims, we
reverse.
FACTUAL AND
PROCEDURAL SUMMARY
In November 2011, Trivedi
Foundation, Inc. (Foundation) filed a complaint for
against Michele Morrisette. According to
the complaint, Trivedi Foundation, a non-profit organization established by
Mahendra Trivedi in 2009, works with the scientific community at major
universities and research centers to document the “transformational properties
of Trivedi’s energy transmissions, which impact living organisms and inanimate
objects for better performance.â€
Morrisette was a former independent contractor who had provided services
to the Foundation in the summer of 2010 but terminated her contract by notice
dated July 6, 2010. Morissette then raised claims against the
Foundation, and the parties entered into a written Confidential Agreement and
Release dated August 28, 2010.
The Agreement (which was not
attached as an exhibit to the complaint) includes a “No Interference or
Disparagement†provision which states:
“All parties agree that they will take no action from this date forward
that might interfere with the other’s activities or damage their
reputation. Prohibited actions would
include, but not be limited to, private or public comments, statements, or
writings critical of [the Trivedi Foundation], or complaints filed against [the
Trivedi Foundation] with any regulatory agency.†The Agreement also required the Trivedi Foundation
to make a payment to Morissette, and the Foundation made payment to her as
required.
According
to the Foundation’s complaint, Morrisette had breached the Agreement by sending
two emails dated August 25, 2011
to current and former employees and associates of the Foundation, accusing
Trivedi and the Foundation of unlawful conduct and insinuating the government
would soon shut down the company. In
addition, on information and belief, the Foundation alleged Morrisette, under
the pseudonym “PurQiâ€, had established and maintained a website, www.purqi.com,
containing comments, statements and writings critical of the Foundation. The Foundation believes Morrisette uses the
pseudonym “PurQi†because she posted a picture of herself on July 7, 2011, and
she signed posts on August 18 and September 2, 2011, “Michele.†In seven separate “PurQi†posts in June, July
and August 2011, Morrisette questioned the legitimacy of the Foundation’s
business practices and accused Trivedi and the Foundation of unlawful actions.
According to the complaint,
Morrisette’s writings have caused the Foundation’s affiliates to withdraw their
public support and to cancel conferences at which sales would be made, have
caused discord among Foundation staff, corporate sponsors, supporters,
affiliates and associates and have damaged its reputation in an amount
exceeding $1 million.
In response, Morrisette filed a
special motion to strike Trivedi’s complaint as a “Strategic Lawsuit Against
Public Participation (SLAPP suit)†pursuant to Code of Civil Procedure section
425.16.
the Code of Civil Procedure unless otherwise indicated.) Morrisette argued the PurQi website and the
statements precipitating the complaint were matters of public interest within
the meaning of subdivisions (e)(3) and (e)(4) of the statute, and it was not
probable the Foundation would prevail on its claims as her declaration
established she had been an employee—not an independent contractor—so the
entire agreement and the nondisparagement provision in particular were illegal
and therefore void and, in any event, the agreement was procured by
duress.
According to Morrisette’s
declaration, she first learned of Trivedi when he was profiled at Deepak
Chopra’s 2010 Sages and Scientists convention which she attended. Trivedi was presented as a “unique individual
with miraculous abilities that had been scientifically validated.†She learned Trivedi “performed ‘thought
transmissions,’ also called ‘blessings,’ and that he and the Foundation’s then
President (Debra Poneman) reported to the audience (approximately 250-300
people) a variety of miraculous healing instances, including but not limited
to, individuals being pronounced cancer free after a blessing. Additionally, they publicly stated that Mr.
Trivedi was able [to] restore health and vitality to individuals.†A PowerPoint presentation was shown
demonstrating Trivedi’s “‘scientifically validated results’ with cattle,
agriculture crops and, I believe, non-living matter including but not limited
to water and ceramics.â€
During 2010, according to
Morrisette’s declaration, Trivedi maintained a website at trivedifoundation.org
where he represented it was the Foundation’s and Trivedi’s mission to research
the benefits of Trivedi’s “thought transmission[s].†According to representations on the
Foundation’s website, Morrisette was informed Trivedi’s “thought transmissionâ€
had been validated in more than 4,000 scientific studies and Trivedi’s
abilities had been validated specifically by Pennsylvania
State University. In fact, Trivedi “proudly told stories about
seeking out premier research facilities in the United
States and that of just a few considered, he
and his staff chose Pennsylvania State.†For much of 2010, Trivedi used the alleged
endorsements of Penn State
and Deepak Chopra--posted on his website—as a way of drawing in
individuals. The Foundation also “stated
and published its primary objective on
its website: ‘to improve the quality of
life and well-being for people on [E]arth.
This will be accomplished in part by Trivedi’s proven ability to create
abundant, disease-free and highly nutritious crops, uncontaminated and pure
water, and a clean and unpolluted environment.’†Morrisette said Trivedi had “several websites
where he promotes his services and product lines, including a YouTube channel
and community forums on Facebook pages.â€
In her declaration, Morrisette said
she met Trivedi in person during one of his “‘blessings’ retreats†in Sedona,
Arizona, on April 10 and 11, 2010. Following one of the “‘blessings sessions,’â€
Trivedi asked to meet with Morrisette personally and invited her to dinner with
him and his personal assistant. Then,
the following morning, she was invited back to the home where the blessings had
taken place. At that time, Trivedi spoke
with Morrisette about working with his company which he said was at an
“exciting growth stage.†Trivedi said
those who chose to work with him during this early stage would be part of his
“‘inner circle.’†He called Morrisette
and another woman “‘rough diamonds’†that would become “diamonds†as his
“‘inner circle’ prospered.†He promised
those who joined then (Spring 2010) “an equity interest†in his company. He said an LLC would soon be formed and
promised Morrisette her “hard work would be substantially rewarded.â€
Throughout further pre-offer
conversations with Trivedi, Morrisette said, Trivedi and his newly hired
Director of Operations (Janice Burney) explained that “initially†Morrisette
(and others) would be “brought on as ‘independent contractors,’†but as soon as
a Human Resources system was in place, Trivedi promised Morrisette she would be
“converted to [an] employee[].†He said
her initial salary would be lower than what she was currently making but said
he would reward her willingness to take a lower salary and “promised [her] an
equity stake in the company and a higher salary as the LLC grew.†She was earning $8,750 in her current
position at the time but told Trivedi the bare minimum she needed to survive
was $5,000 per month. He said his
highest paid employee (Burney) was making that amount and asked if she would
accept less if he provided housing. He
said the Foundation planned to rent a house for use as an office and to provide
extra bedrooms for the rare occasions when out-of-town Foundation members or
employees would stay there. In light of
anticipated pay of even less than $4,500 (“potentially $3,000 during an interim
phaseâ€), Trivedi told Morrisette she and her daughter could live there.
On April 14, 2010, Trivedi offered Morrisette a position with
the Foundation at $4,500 per month, indicating he had “consulted his ‘divine’
and received approval†for doing so. He
offered her the position of “‘Director of Foundation Relations,’†and
Morrisette understood she would be responsible for building relationships with
individuals targeted as potential investors or business partners for the
Foundation. In particular, Trivedi gave
her details on his strategy to target influential individuals who would support
his mission. He told her words to the
effect: “[I]f I can persuade 10
celebrities or people of influence to testify to my abilities, it is much less
wearing on me and the message of my gift and abilities will be available to the
public much sooner versus the time it would take to bless thousands of average
individuals.†Trivedi repeated his
promise to Morrisette that she would return to her higher rate of pay “in a
couple of months†and “in the near future,†she would have “a living space and
benefits to make up for [her] lower wage.â€
After being hired as Director of
Foundation Relations but before her official start date, Morrisette said, she
was assigned to find a residence for the Foundation to rent in the Los
Angeles area.
In the evenings, she researched and visited potential rentals in Los
Angeles, Santa Monica and Beverly Hills.
Every property she suggested was rejected and she was not compensated
for her time. On May 2, she officially began
working for the Foundation but contrary to Trivedi’s representations, the
majority of her duties were menial tasks, such as acting as chauffeur to
Trivedi and others, performing administrative and clerical tasks and acting as
Trivedi’s personal assistant—bringing him water, coffee and food. In the performance of these “nonexemptâ€
duties, Trivedi required Morrisette to work “extraordinarily long hours, seven
days a week, and to be available to [him] 24 hours per day.†She and other employees were told they were
“like a family who were working to grow our business together,†and they were
expected to work seven days a week. In a
special conference call, Trivedi told the employees it “offended†him when they
claimed gas or mileage when they drove to see him, and they would not be
reimbursed. The management threatened
that salary would be docked if a full seven-day week was not worked and
anything less was unacceptable. Another
employee’s salary was docked for failure to work on a Saturday. Because of these threats, Morrisette slept
with her computer and cell phone on her bed in case a call came after midnight
or before 6:00 a.m. so she could meet Trivedi’s demands without being
criticized.
According to Morrisette’s
declaration, Trivedi created a hostile and abusive working environment and
subjected Morrisette to discriminatory treatment on the basis of her gender and
national origin. On multiple occasions,
unlike his treatment of her “male and/or Hindu counterparts,†Trivedi called
her an “idiot†and “stupid†and publicly criticized her during staff
calls. When he was in the same room
following such an incident, he would then pat her head as if “trying to pacify
a dog for having abused it.†She was
also offended by Trivedi’s repeated abuse of other women within the
Foundation.
Between May 8 and 10, Morrisette
said, she was directed to drive Trivedi around Los Angeles to homes in the
area. On one of these evenings, Trivedi
started “screaming at and berating [Morrisette],†“raising his hand in a threatening
manner as if he was going to hit [her].â€
In an “irate rage,†Trivedi objected to innocuous conversation with
Kathy Hilton of Hilton Hotels, Lauren King of King World Entertainment and
celebrity journalist Cheryl Woodcock about weight gain as a potential side
effect of Trivedi’s “‘blessings.’â€
Trivedi “yelled, ‘If I lose these clients, are you going to get me new
clients of this caliber? This is not
about you, it’s about me!’†With
Morrisette captive in his car, Trivedi continuously screamed at her for 20 to
30 minutes. She was terrified and
wept. The next day, she complained to
Burney that Trivedi had verbally abused her the prior evening. Burney threatened to fire her. Morrisette could not comprehend what was
happening as it was so dramatically different from her experience leading to
her acceptance of her position with the Foundation.
According to Morrisette, not only
was she abused, but so was her daughter.
Morrisette was told her daughter could volunteer during the first Los
Angeles “blessing days†on May 11 and 12 to receive service credit for her high
school. At that time, Trivedi verbally
abused Morrisette’s daughter, yelling that she “had ADHD†and was an “idiot,
stupid!†Contrary to the duties of the
job she was promised, Morrisette was again directed to perform menial duties
instead, chauffeuring Trivedi and helping blessings recipients complete
forms. When she and a coworker attempted
to take a meal break, Trivedi “aggressively approached†and said they were
“‘not being productive.’†They ate
sandwiches while working.
On May 13, Morrisette said, after a
visit to a winery (Lambert Bridge) which Trivedi said was owned in part by
philanthropist Ray Chamber, Trivedi directed her to drive him and others from
Los Altos back to Dana Point. She had
started work that day at 6:30 a.m. She
drove until 2:00 a.m. on May 14 when she was too exhausted to drive any
longer. She told Trivedi she could not
drive anymore and needed a break. He
yelled at her in front of the others, saying, “You are being selfish. The others need rest. These people worked harder than you.†When she tried to pull over for the safety of
herself and the others in the car, he again raised his hand as if he was going
to hit her. Then he opened his window as
if that would keep her awake. She told
Trivedi her friend had died in a car accident because he left work extremely
late and tried to drive home while too tired, but he refused to listen to
anything she said. She did not want to
be responsible for harm to anyone but her pleas went unheeded she said. Terrified of Trivedi, she continued to drive
until about 4:00 a.m. On the verge of
falling asleep at the wheel, she finally pulled into a gas station, requesting
that someone else drive as she could not guarantee staying on the road.
According to Morrisette’s
declaration, on May 18, the Foundation unilaterally changed her job title to
Events Manager which also consisted of a majority of nonexempt job duties. Even though “Human Resources was being
instituted†by Burney, the Foundation failed to convert Morrisette to an
employee as promised. The Foundation’s
treatment was contrary to its treatment of male and/or Hindu employees. For example, the wife of one Hindu-speaking
employee said he was paid $8,000 per month “under the table.†Further, as a “supposed exempt employee,â€
Morrisette was required to document the work she performed every 30 minutes
throughout the day.
By the end of June, it was clear to
Morrisette that Trivedi had lured her to the Foundation with false promises
that were not going to come to fruition.
After realizing her employment was “procured through fraud†and that the
Foundation “never intended to have [her] perform in the position for which [she
was] hired†and “after enduring intolerable working conditions in the form of
constant illegal abuse and harassment†from Trivedi, she said, she was
“completely broken†and could not take the abuse any longer. She told the Foundation at the time: “My heart has been broken for over a month
and the tears that I have cried for what is
happening . . . are too many to count.†On July 6, she said, the Foundation
wrongfully constructively terminated her employment.
In her declaration, Morrisette said
she felt “extraordinary shame†that she had “fallen for what I now believe to
be false representations regarding Trivedi’s mission and abilities.†She felt Trivedi was a “sham†and
representations on his website were false.
She said she was so sickened by him and believed his representations about
his “‘blessings’†to be false that she sought a refund from him for the $850
she had paid for such “‘blessings’†in March and April. The Foundation agreed to refund this amount
but required her to sign a release in order to receive it. She was “desperate and emotionally
distraught.†Because she had taken a
significant pay cut and had been falsely promised a housing benefit, she had no
savings left and no income. She could not
meet her rent. She signed the release in
order to avoid eviction. She attached
the two-page “Confidential Agreement and Release†as an exhibit.
The Agreement between the Foundation
and Morrisette specified that the Foundation would pay out “a final amount of
$850 for a blessing refund†and Morrisette acknowledged “she is owed no
additional compensation of any kind.â€
She agreed not to file any claims or charges against the Foundation in
the future. The Agreement provided for
confidentiality except that Morrisette could disclose the Agreement’s terms to
her immediate family, attorney, accountant or similar advisor (and she would
direct such individuals to maintain the confidentiality of the Agreement).
Paragraph 8 of the Agreement bore
the heading “No Interference or Disparagement.â€
It was worded as follows: “All
parties agree that they will take no action from this date forward that might
interfere with the other’s activities or damage their reputation. Prohibited actions would include, but not be
limited to, private or public comments, statements, or writings critical of
[the Foundation], or complaints filed against [the Foundation] with any
regulatory agency. Nothing contained
herein shall prevent [Morrisette] from responding truthfully to inquiries
[from] any government agency pursuant to any subpoena or other compelled form
of inquiry.â€
The Agreement further specified that
the law of Iowa would govern the Agreement and its construction and
enforcement; provided for severability in the event any portion was found to be
invalid; recited that the Agreement represented the parties’ complete
understanding “in connection with its subject matter,†superseding any prior
oral or written agreements or understandings; indicated Morrisette would have
to repay the “blessing refund money†if she violated any term including but not
limited to the confidentiality clause; and stated time was of the essence.
Morrisette’s counsel (Lauren Dean)
also submitted a declaration and supporting exhibits, including a copy of the
PurQi.com home page (Exhibit 3) and posts to the PurQi website at
https://purqi.wordpress.com/2011/07/05/the-power-of-freedom-free-will and
http://purqi.wordpress.com/2011/08/27/where-is-the-truth-in-advertising
(Exhibits 4 and 5) as well as posts from the Foundation’s website, including
information on the Founder (Trivedi) and a Message from the President
(Trivedi). In addition to representing
Morrisette, Dean said, she represented at least five others “pursuing†the
Foundation and related entities, and a complaint she had filed on behalf of
three of these women was attached as Exhibit 2 to her declaration.
The Foundation filed opposition,
arguing the Confidential Agreement and Release was valid and enforceable, and
Morrisette had breached it by making disparaging statements about Trivedi “for
which no free speech protection is afforded.â€
In addition, the Foundation argued Morrisette had made false and
defamatory statements on two websites created for this purpose; she could not
establish her statements were within the meaning of section 425.16, and even if
she could, the Foundation only had to show “minimal merit†to its claims.
Morrisette filed a reply, arguing
the Foundation had effectively conceded that Morrisette satisfied the first
prong of the section 425.16 analysis and had no probability of prevailing on
the merits. Citing Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601,
609, she argued and filed separate evidentiary objections to Trivedi’s
declaration and exhibits other than the Agreement she had attached to her own
declaration. Morrisette further
contended that Trivedi’s declaration was invalid and could not be considered
for failure to comply with the mandatory requirements of section 2015.5. Morrisette also filed a request for judicial
notice of a complaint (for defamation, tortious interference with business
relations and injunctive relief) the Foundation had filed against Tania M.
Slewicki in federal court.
After reviewing the trial court’s
tentative ruling (which is not included in the record), Morrisette’s counsel
argued there was no probability the Foundation would prevail as there was no
evidence of a breach, liability or damages; the Foundation’s evidence was
inadmissible and the complaint would not suffice.
made those statements on this public [Web s]ite.†She argued even if the Foundation were
permitted to file its amended declaration, the statements on the Web site
attributed to Morrisette had not been authenticated so there was absolutely no
evidence of any breach.
Counsel for the Foundation responded
that, even if the trial court rejected the Foundation’s evidence, sufficient
evidence was provided by Morrisette though the declaration of her counsel
(Lauren Dean) and Exhibit 3 to Dean’s declaration, a copy of the home page of
the PurQi Web site, which referred to “The Trivedi Foundation†and directed
viewers where to obtain further information, as well as Exhibit 5, where
Morrisette discussed “our favorite guru,†meaning Trivedi, “since this is the
page that’s linked [to the] Trivedi Foundation.
She then goes on to the next page to
discuss . . . this cowardly, self-preservation desire for
money, reputation, chosen over doing the right thing. [¶] This does come back
to haunt a person. . . .
[E]ven without our declaration or any evidence that we submitted, it’s
clear that her client did breach the non-disparaging clause by
discussing . . . my client online.â€
Dean said, “My declaration addresses
what is currently on the PurQi Web site.
It does not link the comments that are on the PurQi Web site to Michele
Morrisette at all. There’s absolutely no
evidence that Michele Morrisette made those comments on that Web site,
none. [¶] It’s—the Web site is a blog
where other people post comments, other individuals. There’s absolutely no evidence as to who is
running that blog or who is running that Web site.†Later, she reiterated, “In any event, there’s
no evidence of breach or liability. My
declaration absolutely does not link Ms. Morrisette to the comments on—it only
provides the court with information about what’s on the PurQi Website, what
people are saying, and that is an issue of public concern. That was the sole purpose of my
declaration. It has no evidence whatsoever
linking the defendant in this case to that Web site, and there’s no evidence
whatsoever.â€
The trial court took the matter
under submission.
The trial court sustained all of
Morrisette’s evidentiary objections, but denied her special motion to
strike. The court observed the complaint
itself contained allegations the Trivedi Foundation works with the scientific
community at major universities and research centers around the world such that
statements attributed to Morrisette on a public internet website involve a
topic of widespread public interest.
However, the trial court rejected Morrisette’s claim she had proven her
affirmative defenses as a matter of law
and found Morrisette’s own evidence (Exhibits 4 and 5) and the written
agreement were sufficient evidence the Trivedi Foundation had a probability of
prevailing.
Morrisette appeals.
In ruling on a defendant’s special
motion to strike under section 425.16, the trial court engages in a two-step process. “First, the court decides whether the
defendant has made a threshold showing that the challenged cause of action is
one arising from protected activity. The
moving defendant’s burden is to demonstrate that the act or acts of which the
plaintiff complains were taken ‘in furtherance of the [defendant]’s right of
petition or free speech under the United States or California Constitution in
connection with a public issue,’ as defined in the statute. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been
made, it then determines whether the plaintiff has demonstrated a probability
of prevailing on the claim. Under
section 425.16, subdivision (b)(2), the trial court in making these
determinations considers ‘the pleadings, and supporting and opposing affidavits
stating the facts upon which the liability or defense is based.’†(Equilon
Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) We review the trial court’s rulings on a
SLAPP motion independently under a de novo standard of review. (Kajima
Engineering & Construction, Inc. v. City of Los Angeles (2002) 95
Cal.App.4th 921, 929.)
For purposes of the anti-SLAPP
statute, an “‘act 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’ includes: (1) any written or oral statement or writing made before a
legislative, executive, or judicial proceeding, or any other official
proceeding authorized by law; (2) any written or oral statement or writing 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; (3) any 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; (4) or 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.†(
144 Cal.App.4th 1242, 1246-1247, quoting § 425.16, subd. (e).)
“[I]t is the principal thrust or
gravamen of the plaintiff’s cause of action that determines whether the
anti-SLAPP statute applies.†(
(2003) 113 Cal.App.4th 181, 188 (Martinez).) In its complaint, on information and belief,
the Foundation alleged Morrisette, under the pseudonym “PurQiâ€, had established
and maintained a website, www.purqi.com, containing comments, statements and
writings critical of the Foundation, questioning the legitimacy of the
Foundation’s business practices and accusing Trivedi and the Foundation of
unlawful actions. According to Morrisette,
“There can be no dispute that the PurQi website and blog appearing on the PurQi
website are covered by section 425.16[, subdivisions] (b)(1), (e)(3) and (4) of
the anti-SLAPP statute.†Subdivision
(e)(3) defines a protected act in furtherance of the right of petition or free
speech in connection with a public issue as “any written or oral statement or
writing made in a place open to the public or in a public forum in connection
with an issue of public interest.â€
Internet venues constitute a “public forum†or a place “open to the
public†within the meaning of section 425.16.
(Barrett v. Rosenthal (2006)
40 Cal.4th 33, 41, fn. 4; Kronmeyer v.
Internet Movie Data Base, Inc. (2007) 150 Cal.App.4th 941, 950;
1354, 1367.) Moreover, “public interestâ€
for purposes of section 425.16 is “broadly construed,†need not be
“significant†and includes any issue in which the public takes an
interest. (Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468,
479; Nygard v. Uusi-Kerttula (2008)
159 Cal.App.4th 1027, 1039.)
Accordingly, particularly in light of the Foundation’s allegations in
its own complaint as well as similar representations on its own website
boasting of the public’s interest in Trivedi’s “blessings†(including claims of
healing and cure), we agree that the first prong of section 425.16, subdivision
(b)(1) was satisfied. (See
13, 23-24 [website critical of plastic surgeon]; Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 898;
Court (2000) 78 Cal.App.4th 562, 566-567.)
Where as here the defendant
(Morrisette) has made a prima facie showing to invoke the protection of section
425.16, the burden shifts to the plaintiff (the Foundation) to establish a
probability it will prevail on its claims.
(§ 425.16, subd. (b).) Gaps in a
plaintiff’s showing of a “probability of success on the merits†may be filled
by a defendant’s evidence. (
1275, 1289.) Proof of a “legal defense
to liability . . . is immaterial
to the first prong of the anti-SLAPP analysis—i.e., determining whether
plaintiff’s claim is based on defendant’s protected activities.[
proof of a valid defense is relevant to the second prong of the analysis—i.e.,
determining whether there is a
probability of plaintiff prevailing in the action.†(Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter
Group 2012) [¶] 7:938 at p. 7(II)-44, citing Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193
Cal.App.4th 435, 445.)
According to Morrisette, the
Foundation did not establish a probability of prevailing on its breach of
contract cause of action because the trial court correctly concluded all of the
Foundation’s evidence was inadmissible, but incorrectly determined Morrisette’s
own evidence sufficed. We agree with
Morrisette.
Citing our decision in
Rights of Los Angeles (2004) 117 Cal.App.4th 1138 (Fashion 21), the Foundation says the trial court erred in refusing
to consider Trivedi’s declaration and the Foundation’s exhibits. We disagree.
“It is well settled that in opposing
a SLAPP motion the plaintiff’s showing of a probability of prevailing on its
claim must be based on admissible evidence.â€
(Fashion 21, supra, 117
Cal.App.4th at p. 1147; Tuchscher
Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106
Cal.App.4th 1219, 1236 [the showing must be made through “competent and
admissible evidenceâ€].) Trial court
rulings on the admissibility of evidence are generally reviewed for abuse of
discretion. (Pannu v. Land Rover North America, Inc. (2011) 191 Cal.App.4th
1298, 1317, citations omitted; Zhou v.
Unisource Worldwide (2007) 157 Cal.App.4th 1471, 1476.)
Here, Trivedi filed a declaration
stating he was a “duly authorized representative†of the Foundation and was
“authorized†to make the declaration. He
said he had read the “Plaintiff’s Response to Defendant’s Motion to Strike,â€
and “the matters and things therein stated are true and correct to the best of
my knowledge and belief.†Regarding the
PurQi website referenced in his complaint, he said: “Defendant continues to post false and
defamatory statements on the Pur[Q]i [Web s]ite (as defined in the Plaintiff’s
Response) and other forums, as well as solicit and encourage others to do the
same. [¶] The Pur[Q]i [Web s]ite remains operational, and, since this lawsuit
has commenced, on at least six separate occasions, Defendant has encouraged
others to post disparaging content on the Pur[Q]i [Web s]ite. [¶] The founder of the Pur[Q]i [Web s]ite
uses the screen name “PurQi†and posted her picture on the PurQi [Web s]ite at
one point. Although the picture has been
removed, I saw the picture and identified the person as the Defendant.†He concluded, “All of the foregoing matters
are within my personal knowledge.â€
Trivedi’s declaration was submitted
as “Exhibit B†to the Foundation’s “Response†to Morrisette’s special motion to
strike. “Exhibit A†was comprised of 14
pages—some (but not all) of which made reference to “PurQi†and/or
Trivedi. The first page in this stack
reads: “The Power of: Sanctuary[;] Posted on 7 July 11 by PurQi 6
comments[;] Today you get a big reveal in that I’m posting my picture. No darts please!! Now you can see who you are corresponding
with since many of us haven’t meet [sic] in person. I like to know what the person I’m talking to
looks like and thought you might too.†A
rectangular box appears after this text, with the following words (in a smaller
and different font) inside: “Michele’s
picture was here.â€
Another page with the same text and
box is presented as “Exhibit C.â€
However, the version attached as “Exhibit C†is noticeably different
from the page included with “Exhibit A.â€
This second version includes a line of four asterisks (“* *
* *â€) after the words “6
comments,†and includes the following additional text (followed by another line
of four asterisks): “The picture was
taken about a month before I started working at the Trivedi Foundation. I was happy, things were going well. Today I look at it and can say; ‘I’m back!’ Happiness is returning and for awhile I
wasn’t sure it would.â€
Additional pages include unattributed
text such as the following: “Apparently
people are not real happy that fraudulent scientific data was used to persuade
them to make purchases. Who would have
thought?!†and “Our question is[:] ‘Is
this what the highly touted and trademarked Trivedi Effect really is? A terrible virus that has been unleashed on
the general population?’†Someone
identified as “iris†purportedly stated:
“Trivedi is a FRAUD MAN.†Someone
else identified as “Dennis Lang†made comments such as: “This is no longer the story of a fake guru
with fake science who uses his self-proclaimed grandiosity to rape young
women[; and] We do know that in laboratory testing Mr. Trivedi hasn’t
demonstrated anything.†“Robert†said: “People are foolish to attribute their
upswings to one idiot like this man. [¶]
I give no credence to the fools who say their lives were changed by this con
artist. The sooner he is arrested, it is
better for the society. [¶] [I] am sure
that [K]en [W]ilbur gets a cut out of this scumbag’s revenues. So he jumps up and endorses this idiot. [L]ook at the team he has—there’s a bunch of
corrupted money[-]hungry[,] rich sob’s [sic] capitalizing and feeding this
racketeer. Deepak [C]hopra has backed
out of his endorsements fearing his reputation and also realizing he could be
in for a disastrous consequence if he supports this fraud.â€
Morrisette filed evidentiary
objections to all of Trivedi’s Declaration (“Exhibit Bâ€) as well as Exhibit A
and Exhibit C, and the trial court sustained all of these objections.
Citing Kulshrestha v. First Union Commercial Corp.,supra, 33 Cal.4th at
page 609, Morrisette said Trivedi’s entire declaration was invalid and could
not be considered for failure to comply with the requirements of Code of Civil
Procedure section 2015.5, including the requirement to certify or declare under
penalty of perjury under the laws of the State of California that the
statements contained in the declaration are true and correct. In addition, with respect to the assertions
in Trivedi’s declaration that “the founder of the PurQi Web site uses the
screen name ‘PurQi’ and posted her picture on the PurQi [Web s]ite at one
point†and it was Morrisette (“[a]lthough the picture has been removedâ€) and
that Morrisette posted and solicited others to post defamatory statements on
the PurQi Web site, Morrisette objected that the statements lacked foundation
and constituted inadmissible conclusions, opinions and hearsay. (Gilbert
v. Sykes, supra, 147 Cal.App.4th at p. 26 [“declarations that lack foundation
or personal knowledge, or that are argumentative, speculative, impermissible
opinion, hearsay, or conclusory are to be disregardedâ€].)
Moreover, Morrisette successfully
argued, the Foundation’s Exhibits A and C (the purportedly false statements
attributed to Morrisette on the PurQi Web site) were inadmissible for lack of
foundation. (Evid. Code, §§ 1400
[“Authentication of a writing means (a) the introduction of evidence sufficient
to sustain a finding that it is the writing that the proponent of the evidence
claims it is or (b) the establishment of such facts by any other means provided
by lawâ€] & 1401, subds. (a) & (b) [“Authentication of a writing is
required before it may be received in evidence[, and a]uthentication of a
writing is required before secondary evidence of its content may be received in
evidenceâ€].)
According to the Foundation, the
trial court erred in refusing to consider Trivedi’s declaration and the
Foundation’s exhibits under our decision in Fashion
21, supra, 117 Cal.App.4th 1138, in which we determined the trial court did
not commit reversible error when it considered an edited videotape in
determining Fashion 21’s probability of prevailing on its defamation claim for
purposes of a section 425.16 special motion to strike. (Id. at
p. 1146.) In opposing the special motion
to strike, Fashion 21 (the plaintiff) relied on an edited videotape of a
demonstration videotaped by one of its own employees. (Id. at
p. 1145.) The Coalition for Humane
Rights (the defendant) objected that Fashion 21 had failed to submit evidence
the editing did not alter the appearance of the activities shown on the
original unedited version as required by Evidence Code section 1402. (Id. at
pp. 1145-1146.) The trial court
the edited tape in concluding Fashion 21 had established a reasonable
probability of prevailing on its claim.
(Id. at p. 1146.)
The Foundation’s reliance on
review. As we said in
supra, 191 Cal.App.4th at p. 1317, “An appellate court’s ruling that a
trial court did not abuse its discretion in admitting a certain type of
evidence is not authority for the proposition that it is an abuse of discretion
to exclude similar evidence in another case.â€
The trial court in Fashion 21
overruled the evidentiary objections and exercised its broad discretion to
admit the edited videotape, but it does not follow that the trial court in this
case erred in excluding the evidence submitted by the Foundation. The issue before us is not whether the trial
court could have considered the
Foundation’s evidence as presented, but rather whether the trial court abused
its discretion in sustaining Morrisette’s objections to that evidence and
excluding it from the court’s consideration as a result.
Moreover, the evidence excluded in
this case bears no resemblance to the evidence admitted in Fashion 21. As we noted in
the edited videotape at trial, the
defendant’s objection would have been well taken as Evidence Code section 1402
requires the party offering an edited videotape to bear the burden of showing
the editing did not distort the “meaning†of the activity depicted in the
tape. (117 Cal.App.4th at pp.
1146-1147.) Nevertheless, because “it
would be a simple matter to have the videographer truthfully testify at trial
he shot the original videotape, the tape was edited to conserve the court’s
time and delete the portions not relevant to this case, he compared the edited
version of the tape to the original and the edited version accurately depicts
the conduct on the original†in order to satisfy Evidence Code section 1402, we
concluded in Fashion 21 that
sufficient ground for reversing the
trial court’s order denying the SLAPP motion.
(Id. at p. 1148.)
By contrast, in this case, not only
did Morrisette object that Trivedi’s declaration did not comport with Code of
Civil Procedure section 2015.5, but she also raised other objections, including
the failure to state facts showing personal knowledge sufficient to support the
conclusions Trivedi asserted regarding Morrisette. (Gilbert
v. Sykes, supra, 147 Cal.App.4th at p. 26 [“declarations that lack
foundation or personal knowledge, or that are argumentative, speculative,
impermissible opinion, hearsay, or conclusory are to be disregardedâ€].) The Foundation has shown no abuse of
discretion in this regard. Moreover,
Morrisette successfully objected that the Foundation’s other exhibits (the
documents alleged to have come from the PurQi Web site) were inadmissible for
lack of authentication. Indeed,
Trivedi’s declaration made no reference to Exhibits A and C. In addition, unlike the videotape at issue in
Fashion 21 which could “simply†be
authenticated by testimony from the videographer (the proponent’s own employee)
who shot the original videotape stating he had not changed its meaning through
editing (117 Cal.App.4th at pp. 1145, 1148), the Foundation provided no basis
whatsoever for concluding the documents were what the Foundation contended they
were as required under Evidence Code sections 1400 and 1401.
“‘[A]nyone can put anything on the
Internet,’†and “‘hackers can adulterate the content on any web-site from any location
time.’†(People v. Beckley (2010) 185 Cal.App.4th 509, 515-516, quoting
Inc. (S.D.Tex. 1999) 76 F.Supp.2d 773, 774-775 [ownership of boat could not
be established through information available on U.S. Coast Guard’s online
vessel database]; and see Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group
2011) ¶ 8:359 at p. 8C-30, citations
omitted.) Internet-based information is
often viewed as “inherently untrustworthy†with the Internet regarded as a
“catalyst for rumor, innuendo, and misinformation.†(Ibid.,
citations omitted.)
The Foundation failed to provide any
basis for authenticating the documents purportedly obtained from the Internet—the
PurQi Web site in particular. (Wegner et
al., Cal. Practice Guide: Civil Trials
and Evidence, supra, at ¶¶ 8:359.1
through 8:359.5 at pp. 8C-30 to 8C-31, citations omitted [factors which may
provide a basis for authenticating Internet-based material as evidence include
distinctive characteristics such as unique hypertext markup codes, the context
in which the proponent obtained the documents, the content itself, and
testimony from the person who created the Internet-based documents].) Here, the Foundation presented no evidence to
establish the documents were what the Foundation claimed them to be. To the contrary, Exhibit A and Exhibit C
contained materially different versions of what was purportedly the same entry
on the PurQi Web site—with no explanation for the disparity provided. Moreover, none of the pages included in
Exhibits A and C bore information regarding the Web addresses or dates of
printing (or any headers or footers at all), let alone a declaration of the
person printing the documents sufficient to support a finding of
authenticity. The trial court did not
abuse its discretion in excluding all of the Foundation’s evidence.
In its ruling, the trial court also
concluded Morrisette’s own evidence
constituted sufficient admissible evidence to demonstrate the probability the
Foundation would prevail on its claim Morrisette had breached her agreement
with the Foundation.
name="_ftnref6" title="">[6] In this respect, we disagree.
As Morrisette notes, “A cause of
action for damages for breach of contract is comprised of the following
elements: (1) the contract, (2)
plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach,
and (4) the resulting damages to plaintiff.
[Citation.]â€
title="">[7] (Careau
& Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d
1371, 1388.) Morrisette attached a copy
of the “Confidential Agreement and Release†to her own declaration and
acknowledged she had signed it.
According to the terms of the Agreement, Morrisette further acknowledged
“that she has been paid†the “final amount of $850 for a blessing refund,†and
“that she is owed no additional compensation of any kind.â€
With respect to the element of
breach, as provided in paragraph 8 of the “Confidential Agreement and Releaseâ€
(Exhibit 1 to Morrisette’s declaration), “All parties [identified as the
Foundation and Morrisette] agree that they will take no action from this date
forward that might interfere with the other’s activities or damage their
reputation. Prohibited actions would
include, but not be limited to, private or public comments, statements, or
writings critical of [the Foundation], or complaints filed against [the
Foundation] with any regulatory agency.
Nothing contained herein shall prevent [Morrisette] from responding
truthfully to inquiries [from, sic] any government agency pursuant to any
subpoena or other compelled form of inquiry.â€
Morrisette supported her special
motion to strike with evidence including the declaration of her attorney (Dean)
who testified she had visited the PurQi.com Web site, and attached a copy of
its home page as Exhibit 3 to her declaration.
According to this home page, “PurQi is an organization dedicated to help
educate and encourage new research in the areas of spiritual seeking, healing
modalities, energy transmissions, transformation, enlightenment, and
consciousness. [¶] There are many paths
available to pursue when one embarks on the quest to reach his or her full
potential. Finding the one that
resonates with you as an individual can be one of the most challenging parts of
the process. Misinformation and
manipulative marketing efforts by some compound the issue, which can influence
one’s decision making process through the withholding or spinning of facts. [¶] Our mission is to act with grace, love,
and compassion and to ensure that the truth is told.
“Whenever possible, we will provide
scientific data that supports or negates a particular position. We will also have an interactive opinion area
on our Blog, PurReflections, where discussions on particular topics can
surface to ensure the flow of information stays current and can be
archived. [¶] There are very effective coaches, counselors,
healers and spiritual advisors who truly care about individuals and have proven
track records. You will find these
professionals listed in our library of Best Practices. [¶] In cases where there is egregious abuse
by an individual or an organization, you can click on the M429 tab to learn more.
We are passionate about protecting the reputations of professional,
gifted, and effective individuals and their practices.
“Current M429 Investigations:
Trivedi Foundation. If you are a current
or former employee or client seeking information, click here for more
information: TRIVEDI.
Just below the heading (“
there are two pictures—the first of a man and the second, a woman. Immediately to the right of these two
pictures, the following text appears:
“Interview with Patrick Wanis Ph.D., Behavioral Expert and
needs that often, unknowingly influence an individual[’]s decision making
process as they [sic] seek ways to achieve self-improvement and be better
global citizens. The interview examines
the James Arthur Ray case, Mahendra
Trivedi and Charles Manson as individuals with highly persuasive tendencies
that led them on the path to becoming gurus/cult leaders instead of teachers.†(Italics added, bolding and underling in
original.)
The “PurQi-Home†page (as identified
in the header of Exhibit 3, with the following address identified in the
footer: “http://www.purqi.com/â€)
includes a link to “PurReflections†(as well as a link to “Contactâ€). Exhibits 4 and 5 to Dean’s Declaration are
identified as “blog entries,†with headers of “Where is the ‘Truth’ in the
Truth in Advertising?!PurReflections†and “The Power of: Freedom &
Free-Will PurReflections†and footers of
https://purqi.wordpress.com/2011/07/05/the-power-of-free-will and
http://purqi.wordpress.com/2011/08/27/where-is-the-truth-in-the-truth-in-advertising/. The “PurReflections†blog entries are written
in the first person singular but are unsigned.
The first blog post (“The Power of:
Freedom & Free-Willâ€, Exhibit 4) is followed by another link to “
with Patrick Wanis, PhD†followed by the same picture of a man included on
the PurQi home page (Exhibit 3), beside an arrow and the following text: “Click
Arrow to Listen [¶] The the [sic] full, unedited version of the audio
interview with Patrick Wanis from this past weekend about Gurus, Brainwashing
& Cults. I hope that you will take
the time to listen and let his words touch you as they did me. [¶] For more information visit Patrick at
www.patrickwanis.com. . . .†Eight “RESPONSES†follow the
blog entry.
In the second of these responses,
“PurQi†thanks “PowerIS Within†who posted the first response and goes on to
question “Trivedi’s integrity†and how “he likes to ‘hook’ new followers,â€
saying “he is no Einstein†and “his IQ is rather low. “PowerIS Within†says (in part) of
Trivedi: “HE IS NOT A GENIUS, HE’S A
LIAR & A PLAGIARIZER. . . . EVEN HIS
GURU FAÇADE HAS BEEN DONE MANY TIMES BEFORE. . . .â€
Later that night, “Jim Gordonâ€
responds: “Thank you Patrick . . . I
really resonate with the knowledge you shared here. Thank
you Michele for the work you are doing.â€
(Italics added.) “Dennis Langâ€
says: “What a fascinating discussion
with Dr. Wanis. As I listen to it I
can’t help but start to understand what began for me personally as the
exploration of one man’s practice—that of morality, power and dominance through
sexual relations. The ongoing story of
Trivedi includes all of this. Dr. Wanis
begins to inform us where lies our susceptibility to being controlled (and none
of us are immune), how people are attracted to it, and how their allegiance is
maintained. . . .†In a
subsequent response from PurQi, PurQi says:
“Perhaps Trivedi and his staff should have taken the course that I did
at WIPO (Worldwide Intellectual Property Organization—Geneva, Switzerland)
before he started copying and pasting!
Works of art and written work products are covered for 70 years after
the author dies. . . maybe a few copyright infringement claims would open up a
new avenue for people to protest what he is up to.â€
In the second “PurReflections†blog
entry, the author refers to “our favorite guru†and says, “Back in the day when
I was working at a Fortune 10 Company, I spent 4 years managing Litigation
Prevention and Dispute Resolution. . . .†The author discusses “My Favorite Consumer
Protection Acts,†stating “While at Ford I committed the 50 unique Lemon Laws
to memory,†and “If you promise that a certain type of water will have certain
properties but doesn’t you have[:] 1) made an implied warranty upon sale and 2)
breached the warranty because the product isn’t ‘fit for the purpose
intended.’†Then, under the heading “
author writes: “When a person chooses
not to act on behalf of themselves, not to stand up up [sic] and say[:] ‘Hey,
you deceived me!’ they may unwittingly set in motion a chain of events that can
lead to serious injury or even death.
It’s not always convenient to act and stand up for something. Trust me, I know!! Many people don’t want their business
reputations to be darkened and will disavow any knowledge or involvement with a
certain group if they feel it could harm them professionally.
“Sometimes there are valid
reasons. The injury they suffered was so
egregious that it takes a significant amount of recovery time and they are not
physically, mentally or emotionally able to stand up and fight for a certain
cause. Others are less valid—my
opinion. The person that has significant
inside information and chooses not to be a ‘whistle blower’ for the
purpose of protecting themselves eventually will get caught. Maybe not in this life by authorities but
when the Wheel of Life and Rebirth has turned, they will have to face the
cowardly way they acted.
Self-preservation, desire for money and reputation when chosen over
doing the right thing, does come back to haunt that person. Perhaps they feel inhibited by ‘
forced to sign under duress to get a final paycheck or other due monies, the
lik[e]lihood of [the agreement(s), sic] being held valid isn’t high.
“That is what consumer protection
and labor law acts are for. To protect
naïve and unwary consumers and employees from a company that is in blatant
violation.†Again, the seven responses
to this blog post specifically refer to Trivedi and the Foundation. “Dennis Lang†again disparages Trivedi’s investment
of “nothing—zippo—in research to prove his self-proclaimed majesty as the
world’s greatest healer . . . despite generating revenue in
the millions of dollars.†“He has told
his followers he would invest in research so that in every corner of the globe
it would be known that science, real science approved of him. [¶] He lied.
[¶] Remember folks, the only
study of accepted scientific protocol to be published in the United States was
performed by Mr. Trivedi over a number of days on two different occasions in 2009 at Penn State University. That study is linked here at Purqi. The study concluded Trivedi couldn’t effect
[sic] a thing. His blessings were
totally ineffectual. [¶] He has no
ability. . . .†“Langâ€
goes on to discuss the “hyperbolic drivel by a third-rate ad slug that tells
you the Trivedi Effect has been seen in ‘all kinds of materials and has special
applications in hea[l]th and agricultural science.’ [¶] Don’t believe a word of it. . . .†Later in his response, “Lang†says: “Yesterday I had a conversation with someone
once very close to Trivedi. It was his
second wife. She wants to warn people
she told me. People will seek him out as
a last resort for a serious medical matter.
They will pay him thousands. Many
have. For awhile they may have a renewed
hope but that hope will become despair.
The blessings don’t work. [¶] ‘I
should know,’ she said. ‘I was one with
a very serious problem. He blessed me
and told me I was cured. I wasn’t. He lied.
And I was his wife.’â€
“PurQi†then posted this
response: “Wow. Even I am speechless on this one. His second wife or second U.S. wife . . .
which would really be third? [¶] Any
chance she would be willing to share comments in a main article like Dr. Hegde
and Prof. Roy did? I promise it would be
very respectful and only for the purpose of providing a place for her to
express the warning that she wants to share. . . .†The exchange between “Lang†and “PurQiâ€
continues. Then “Jim Gordonâ€
responds: “Well said both Dennis and PurQi. I must rush and get this comment out on
Facebook. Jim[.]â€
On this
record, we conclude the trial court erred in finding Morrisette’s own evidence
supported the conclusion the Foundation had a probability of prevailing on its
breach of contract claim. In her
supporting declaration, Morrisette’s attorney (Dean) merely stated that
Exhibits 3 through 5 depicted the information set forth on the PurQi Web site
at the time she visited that site. The
Foundation bore the burden to establish the information on the PurQi Web site
was what the Foundation claimed it to be—namely, evidence that Morrisette
provision of the agreement in any way.
Even assuming the evidence can
reasonably be read to show Morrisette has some association with PurQi, there is
no evidence she made any of the allegedly offending statements or was involved
in posting any such statements. (
Cal.App.4th at p. 514 [a “writing may be authenticated by ‘the introduction of
evidence sufficient to sustain a finding that it is the writing that the
proponent of the evidence claims it is’â€]; and see Wady v. Provident Life & Accident Ins. Co. of America (C.D.Cal.
2002) 216 F.Supp.2d 1060, 1064, citations omitted [evidence taken from the
Internet lacks authentication where proponent does not establish information
had been posted by alleged source].)
While it is true a plaintiff need only show a case of “minimal merit†(
Richter & Hampton LLP (2005) 133 Cal.App.4th 658, quoting
82, 95, fn. 11), speculation will not suffice.
Because the evidence presented does not
show Morrisette posted any offending comments, her special motion to strike
should have been granted.
name="_ftnref8" title="">[8]
DISPOSITION
The order is reversed. Morrisette is to recover her costs on appeal.
We concur:
PERLUSS, P. J.
ZELON, J.
also filed a cross-complaint against the Foundation as well as Trivedi and Trivedi
Master Wellness, LLC, asserting the following causes of action: (1) fraud and deceit, (2) wrongful
termination/adverse treatment in violation of statute and public policy, (3)
intentional infliction of emotional distress, (4) assault, (5) failure to pay
statutorily mandated wages, (6) failure to maintain records and provide
accurate itemized wage statements, (7) rescis
| Description | This is an appeal from an order denying a special motion to strike pursuant to Code of Civil Procedure section 425.16. Because the defendant demonstrated that the plaintiff’s claims arise from “protected activity†within the meaning of this statute but the plaintiff failed to meet its burden to establish the probability of prevailing on its claims, we reverse. |
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