Peters & Freedman LLP v. McMahon

Filed 10/30/07 Peters & Freedman LLP v. McMahon CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Gregory Munoz, Judge. Affirmed.

Peters & Freedman Michael G. Kim and Simon J. Freedman for Plaintiff and Respondent.

Philip A. Putman for Defendant and Appellant Elizabeth McMahon.

Arnold A. McMahon, in pro per., for Defendant and Appellant Arnold A. McMahon.

Defendants Elizabeth McMahon and Arnold A. McMahon (the McMahons) appeal from an order denying their anti-SLAPP[1] motion to strike libel and invasion of privacy causes of action asserted by plaintiff Peters & Freedman LLP (the law firm). The causes of action are not subject to the anti-SLAPP statute because the allegedly defamatory statements do not concern a public issue. (Code Civ. Proc.,  425.16, subds. (e)(3) & (e)(4).)[2] We affirm.

FACTS

The law firm filed the operative first amended complaint in December 2005. It asserted 64 causes of action against the McMahons based on 21 statements posted on their website.[3] It asserted three causes of action (libel, libel per se, and invasion of privacy) for each of the 21 statements. It also asserted a cause of action styled, Permanent Injunction. The statements accused the law firm and its attorneys of committing illegal and unprofessional conduct while representing homeowners associations in various lawsuits.

The McMahons filed an anti-SLAPP motion to strike the complaint, which the court denied. It impliedly found the McMahons showed the statements arose from activity protected by the anti-SLAPP statute, and expressly found the law firm showed a probability of prevailing on their causes of action.

DISCUSSION

The order denying the McMahons anti-SLAPP motion to strike the complaint is directly appealable. ( 425.16, subd. (i).) It is subject to our independent review. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325.)

The McMahons Must Show the Statements Are Protected by the Anti-SLAPP Statute

The anti-SLAPP statute provides, A cause of action against a person arising from any act of that person in furtherance of the persons right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike. ( 425.16, subd. (b)(1).)

The McMahons bear the initial burden of establishing the challenged causes of action are based on [their] protected free speech or petitioning activity. (Navellier v. Sletten (2002) 29 Cal.4th 82, 89 (Navellier).) If the McMahons meet their burden, the law firm then bears the burden to establish[] that there is a probability that [it] will prevail on the claim. ( 425.16, subd. (b)(1).) The parties agree the law firms causes of action arise from the allegedly defamatory statements. The issue is whether those statements are protected by the anti-SLAPP statute.[4]

To meet their initial burden, the McMahons must show the statements fit[] one of the categories spelled out in section 425.16, subdivision (e). (Navellier, supra,29 Cal.4th at p. 88.) The only way a defendant can make a sufficient threshold showing is to demonstrate that the conduct by which the plaintiff claims to have been injured falls within one of those four categories. (Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1130 (Weinberg).)

The McMahons concede the statements do not fall within the first two categories of protected activity.[5] The statements were not made in a governmental proceeding or in connection with an issue being reviewed by a governmental body. ( 425.16, subds. (e)(1) & (e)(2).)

Rather, the McMahons contend the statements are protected because they concern issues of public interest. They assert each statement falls within section 425.16, subdivision (e)(3), which protects statements made in . . . a public forum in connection with an issue of public interest. They further assert each statement falls within section 425.16, subdivision (e)(4), which protects statements made in furtherance of . . . the constitutional right of free speech in connection with a public issue or an issue of public interest.

The common element of these protected speech categories is the requirement that the statements be made in connection with an issue of public interest.[6] The Legislature intended this requirement to have a limiting effect on the types of conduct that come within the third and fourth categories of the [anti-SLAPP] statute. (Weinberg, supra,110 Cal.App.4th at p. 1132.)

The McMahons Failed to Show the Statements Concern Issues of Public Interest

While the anti-SLAPP statute protects statements concerning an issue of public interest, it does not provide a definition for an issue of public interest, and it is doubtful an all-encompassing definition could be provided. (Weinberg, supra,110 Cal.App.4th at p. 1132.)

The McMahons note three examples courts have used to illustrate issues of public interest. The court in Rivero [v. American Federation of State, County and Municipal Employees, AFL-CIO (2003)] 105 Cal.App.4th 913 [(Rivero)], described three situations in which statements may concern a public issue or a matter of public interest: (1) the subject of the statement or activity precipitating the claim was a person or entity in the public eye; (2) the statement or activity precipitating the claim involved conduct that could affect large numbers of people beyond the direct participants; or (3) the statement or activity precipitating the claim involved a topic of widespread public interest. (Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 111 (Mann).)

The McMahons contend the statements match up to each of these examples. Their contentions are unsupported by citations to the record or persuasive case law.

First, the McMahons claim the law firm is in the public eye. (Mann, supra, 120 Cal.App.4th at p. 111.) They assert the law firm represents more than 500 homeowners associations with tens of thousands of members, lobbies for homeowners associations, and has appeared on television. Even if true, a private law firm does not inject itself into the public eye merely by having many clients or making isolated media appearances. (See Rivero, supra, 105 Cal.App.4th at p. 924 [citing public eye cases involving a nationally known figure, a nationally broadcast television show, and a large church subjected to extensive media coverage] italics added.)

Second, the McMahons claim the law firms conduct affect[s] large numbers of people beyond the direct participants. (Mann, supra, 120 Cal.App.4th at p. 111.) But the relevant focus here is on the statement or activity precipitating the claim, not the conduct precipitating the statement that precipitates the claim. (Ibid.) The question is whether the statements could affect large numbers of people. The McMahons fail to explain how the posted criticisms of the law firm could affect anyone other than the law firm, except by appealing to the publics general interest in attorneys and court proceedings. This claim spills into the last of the three Mann examples.

Third and finally, the McMahons claim the statements involved a topic of widespread public interest. (Mann, supra, 120 Cal.App.4th at p. 111.) They fail to cite any evidence in the record showing the law firms conduct, as described in the statements, has generated any widespread interest beyond the McMahons own website. (Weinberg, supra,110 Cal.App.4th at p. 1133 [defendant cannot create public interest by publicizing private information]; Rivero, supra, 105 Cal.App.4th at p. 926 [same].)

The McMahons instead resort to broad principals and themes. They assert the public is generally interested in allegations of attorney misconduct, court proceedings, and homeowner associations. This general interest, if any, is insufficient.

To show an issue of public interest, [t]he assertion of a broad and amorphous public interest is not sufficient. (Weinberg, supra,110 Cal.App.4th at p. 1132.) Despite the general interest in public safety, allegations of criminal conduct are not necessarily protected by the anti-SLAPP statute. (Id. at pp. 1134-1136.) Despite the general interest in public universities, allegations of employee wrongdoing at the University of California are also not protected. (Rivero, supra, 105 Cal.App.4th at pp. 924-925.) Despite the general interest in public health, statements by a medical corporation to a health maintenance organization are not protected (Kurwa v. Harrington, Foxx, Dubrow & Canter, LLP (2007) 146 Cal.App.4th 841, 848-849); neither are statements concerning the efficacy of a particular herbal supplement (Consumer Justice Center v. Trimedica International, Inc. (2003) 107 Cal.App.4th 595, 601).

The McMahons cite no evidence that the public has shown particular widespread interest in the specific activities mentioned in the statements. They have not shown the alleged attorney misconduct has generated public scrutiny.[7] (See Weinberg, supra,110 Cal.App.4th at p. 1132 [unreported accusations of criminal conduct not protected].) They have not shown the particular court proceedings are subject to more attention than any other matter of public record. (See Rivero, supra, 105 Cal.App.4th at pp. 924-925 [specific illegal employment conduct at public university not an issue of public interest even though it implicates a public policy; rejecting claim that every allegedly inappropriate use of public funds, no matter how minor, would constitute a matter of public interest].) And they fail to show the specific homeowner association activities have captured widespread public interest. While homeowner associations no doubt interest some of their members, their every act is not so weighty as to constitute an issue of public interest.(See Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479 [statements to homeowners association members involved issues of public interest because they concerned the very manner in which this group of more than 3,000 individuals would be governed an inherently political question of vital importance to each individual and to the community as a whole].)

The McMahons thus fail to show the statements were made in connection with issues of public interest. Rather, they appear to be matter[s] of concern to the speaker and a relatively small, specific audience of other persons who feel wronged by the law firm and want to share their grievances among themselves. (Weinberg, supra, 110 Cal.App.4th at p. 1132.) For statements to merit protection by the anti-SLAPP statute, the focus of the speakers conduct should be the public interest rather than a mere effort to gather ammunition for another round of [private] controversy . . . . (Id at pp. 1132-1133.) Statements made in a private campaign of vilification such as this do not interest the public and are not protected. [8] (Id. at p. 1135.)

DISPOSITION

The order denying the anti-SLAPP motion is affirmed. The law firm shall recover its costs on appeal.

IKOLA, J.

WE CONCUR:

SILLS, P. J.

RYLAARSDAM, J.

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[1] SLAPP is an acronym for strategic lawsuit against public participation. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.)

[2] All further statutory references are to the Code of Civil Procedure.

[3] Two other defendants did not join in the anti-SLAPP motion and are not involved in this appeal.

[4] Though the parties briefed this issue below, they did not brief it on appeal initially. At our invitation, they filed supplemental briefs on the issue.

[5] Section 425.16, subdivision (e) provides, [a]s used in this section, act in furtherance of a persons 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.

[6] We assume without deciding the website on which the statements were posted is a place open to the public or a public forum. ( 425.16, subd. (e)(3).)

[7] Two of the statements on the website take the form of letters to the then-State Bar president. No evidence shows the letters were actually sent to him. Moreover, the letters were not addressed to the State Bar at all, but to a private law office. They are no more an official complaint to the State Bar than a letter addressed to George W. Bush, Crawford, Texas would be an official complaint to a federal agency.

[8] Because we do not reach whether the law firm showed a probability of prevailing on the merits, its motion to take additional evidence is denied as moot.