Cambridge> v. Holland>















Filed 4/26/13 Cambridge v. Holland CA4/2













NOT TO BE
PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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






>

RICHARD CAMBRIDGE, Plaintiff and Respondent, v. MILTON HOLLAND, Defendant and Appellant.

E053672 (Super.Ct.No. CIVVS1000888) OPINION

APPEAL from the href="http://www.mcmillanlaw.us/">Superior Court of San Bernardino County. Steve Malone, Judge. Affirmed.

Kevin McBride for Defendant and
Appellant.

Law Offices of Charles D. Nachand,
Charles D. Nachand and Richard B. Hudson for Plaintiff and Respondent.

Defendant and appellant Milton
Holland appeals from an order denying
his special motion to strike pursuant to Code of Civil Procedure section 425.16
(hereinafter section 425.16). The appeal
is authorized by Code of Civil Procedure section 904.1, subdivision (a)(13).

The
trial court denied the motion on grounds that, “although defendant Holland has
met his burden of showing that the causes of action arise, in part, out of his
protected speech, [p]laintiff [and respondent] Cambridge has met his burden of
showing that he has a probability of prevailing based on his showing that
Holland made defamatory and unprivileged statements to Ms. Beckman and Mr.
Duffey accusing plaintiff of a crime.”
(Underscore omitted.)

I

THE SPECIAL MOTION TO STRIKE

“Section 425.16 provides in relevant part that: ‘A cause of action against a person arising
from any act of that person in furtherance of the person’s href="http://www.mcmillanlaw.us/">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, unless the court determines
that the plaintiff has established that there is a probability that the
plaintiff will prevail on the claim.’
[Citation.] ‘The Legislature enacted section 425.16 to
prevent and deter “lawsuits brought primarily to chill the valid exercise of
the constitutional rights of freedom of speech and petition for the redress of
grievances.” [Citation.] Because these meritless lawsuits seek to
“deplete the defendant’s energy” and drain “his or her resources [citation],
the Legislature sought to prevent SLAPPs^[href="#_ftn1" name="_ftnref1" title="">[1]^] by ending them early and
without great cost to the SLAPP target.”
[Citation.] Section 425.16
therefore establishes a procedure where the trial court evaluates the merits of
the lawsuit using a summary-judgment-like procedure at an early stage of the
litigation.’ [Citations.]” (Soukup
v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 278; see also >Oasis West Realty, LLC v. Goldman (2011)
51 Cal.4th 811, 819-820.)

Section 425.16,
the anti-SLAPP statute, therefore “permits a court to dismiss certain types of
nonmeritorious claims early in the litigation.
[Citation.]” (>Chavez v. >Mendoza (2001) 94 Cal.App.4th 1083, 1087.)

Specifically,
“[r]esolution of an anti-SLAPP motion ‘requires the court to engage 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. [Citation.] 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.’
[Citation.]” (>Jarrow Formulas, Inc. v. LaMarche (2003)
31 Cal.4th 728, 733.)

II

THE TRIAL COURT’S DECISION

As noted above, the trial court
found defendant had met his burden of showing that the action arose from his
exercise of his free speech rights in connection with a public issue. However, it then determined that plaintiff
demonstrated a probability of prevailing on his defamation claim.

The issues presented are whether the
latter determination is correct and whether defendant has shown, as a defense,
that the statements are absolutely privileged under Civil Code section 47.

III

THE STATEMENT OF DECISION

The trial court’s statement of
decision succinctly summarizes the facts as follows: “This Special Motion to
Strike plaintiff Cambridge’s
First Amended Complaint (FAC) and the demurrer to the FAC arise out of a
dispute between two members of the Apple Valley Village Property Owners
Business Improvement District (PBID). Cambridge
alleges that the dispute arose when Holland
sought reimbursement of $1,000.00 for equipment and materials required to take
pictures of a sign under discussion by the PBID [by] falsely claiming that Cambridge
had authorized the expenditure. Cambridge
alleges that Holland
has falsely accused him of stealing money from PBID and made other false
accusations. Cambridge
sues alleging, in the FAC, causes of action for 1) Defamation and 2) Injunctive
Relief.”

As noted above, the trial court
found defendant’s statements were made in exercise of his free speech rights in
connection with a public issue.

IV

PROBABILITY OF PREVAILING ON THE DEFAMATION
CLAIM

Since the SLAPP statute is aimed at
weeding out unmeritorious claims, the SLAPP motion should be granted unless
plaintiff has demonstrated a probability of prevailing on his defamation
claim. (§ 425.16, subd. (b).)

The trial court relied on >ComputerXpress, Inc. v. Jackson (2001)
93 Cal.App.4th 993: “To show a probability of prevailing for purposes of
section 425.16, a plaintiff must ‘“‘make a prima facie showing of facts which
would, if proved at trial, support a judgment in plaintiff’s favor.’”’ [Citation.]
This standard is ‘similar to the standard used in determining motions
for nonsuit, directed verdict, or summary judgment,’ in that the court cannot
weigh the evidence. [Citation.] However, the plaintiff ‘cannot simply rely on
the allegations in the complaint’ [citation], but ‘must provide the court with
sufficient evidence to permit the court to determine whether “there is a
probability that the plaintiff will prevail on the claim.”’ [Citation.]’”
(Id. at p. 1010.)

Disregarding the statements made in
public proceedings or in connection with protected free speech activities, the
trial court examined the evidence showing that defendant made defamatory
statements to private persons.

The evidence submitted by plaintiff
consists of three declarations. The trial
court succinctly described the declarations as follows: “Cambridge presents the declaration of Donald
Duffey [(Duffey)] who declares that Holland came to his place of business with
a petition he believed was related to the PBID and that after Duffey told him
that he was not interested in the petition, Holland told him that Mr. Cambridge
was a crook. Duffey Declaration ¶¶
2-4. Cambridge also presents the
declaration of Soni[] Beckman [(Beckman)], an administrative consultant to the
PBID, who declares that some time after the September 2009 PBID meeting,
Holland called her and, after informing her that he did not intend to sue her,
stated that Cambridge ‘was a crook and embezzler.’ Beckman Declaration ¶ 9. Beckman also declares that, after the
November 2009 PBID meeting, Holland
approached her in the parking lot and told her that Cambridge
‘was a crook and had embezzled funds.
Beckman Declaration ¶ 12. Cambridge
presents his own declaration where he states that Holland’s
statements were false and denies receiving any money to build the sign which
was the apparent basis for Holland’s
claims that Cambridge
acted inappropriately. Cambridge
Declaration ¶¶ 10, 13, 17, 18.”

Setting aside the question of
whether defendant has successfully established his privilege defense, it is
apparent that the declarations establish at least a prima facie case of
defamation by slander. (Civ. Code, §§
44, 46.) As the trial court points out,
slander includes a false and unprivileged oral communication which accuses a
person of a crime. (Civ. Code, § 46.)

Defendant disagrees with the trial
court’s analysis and instead posits a test that would require granting the
motion if the alleged statements were “contextually related” to the public
issue, even if the statements were defamatory per se, and even if they were
made outside the official meeting place.


We do not need to respond to the
argument in detail because the entire discussion of the arguments presented in
that case was in the interpretation of the first issue, i.e., whether the act
was in furtherance of a person’s right of petition or free speech. (Briggs,
supra, 19 Cal.4th at pp. 1113-1114,
interpreting section 425.16, subdivisions (b)(1) and (e).) The court specifically noted it was not
basing its decision on the issue of whether the plaintiffs met their burden of
demonstrating a probability that they would prevail on their claims. (Briggs,
at p. 1115, fn. 6.) The case is thus not
applicable to the issues presented here.

In addition, we note the trial court
found in defendant’s favor on the first portion of the test. (§ 425.16, subd. (e).) Nothing in Briggs interprets the second portion of the test.

In his respondent’s brief, plaintiff
cites Soukup v. Hafif, >supra, 39 Cal.4th 260, in support of the
trial court’s decision. In that case,
our Supreme Court said: “To establish a probability of prevailing, the plaintiff
‘must demonstrate that the complaint is both legally sufficient and supported
by a sufficient prima facie showing of facts to sustain a favorable judgment if
the evidence submitted by the plaintiff is credited.’ [Citations.]
For purposes of this inquiry, ‘the trial court considers the pleadings
and evidentiary submissions of both the plaintiff and the defendant [citation];
though the court does not weigh the credibility or comparative probative
strength of competing evidence, it should grant the motion if, as a matter of
law, the defendant’s evidence supporting the motion defeats the plaintiff’s
attempt to establish evidentiary support for the claim.’ [Citation.]
In making this assessment it is ‘the court’s responsibility . . . to
accept as true the evidence favorable to the plaintiff . . . .’ [Citation.]
The plaintiff need only establish that his or her claim has ‘minimal
merit’ [citation] to avoid being stricken as a SLAPP. [Citation.]”
(Id. at p. 291.) Applying this test, we agree with the trial
court that the defamation cause of action has “minimal merit.” Since it was therefore a potentially
meritorious cause of action, the trial court properly denied the special motion
to strike.

V

THE ABSOLUTE PRIVILEGE DEFENSE

Civil Code section 47, subdivision
(b) defines privileged publication to include a publication made in “any (1)
legislative proceeding, (2) judicial proceeding, (3) in any other official
proceeding authorized by law . . . .”href="#_ftn2" name="_ftnref2" title="">[2]

Defendant urges that his statements
to Beckman were related to the public issue.
Similarly, he argues that his statements to Duffey are protected by this
privilege because they were all made during defendant’s conversation with
Duffey, in which he asked Duffey to sign a petition to remove plaintiff from
office.

However, we agree with the trial
court that Civil Code section 47, subdivision (b) is inapplicable because the
statements were not made in a legislative
or judicial proceeding, or “any other official proceeding authorized by law . .
. .” “‘[T]he
privilege applies to any communication (1) made in judicial or quasi-judicial
proceedings; (2) by litigants or other participants authorized by law; (3) to
achieve the objects of the litigation; and (4) that have some connection or
logical relation to the action.’” (Wise v.
Thrifty Payless, Inc. (2000) 83 Cal.App.4th 1296, 1302.) The statements were made to Beckman and
Duffey, persons not involved in any legislative or legal proceedings with
defendant. Accordingly, we find that the litigation privilege does not protect
defendant from a defamation action.

Civil Code section 47, subdivision
(c) provides a privilege for “a communication, without malice, to a person
interested therein, (1) by [a person] who is also interested, or (2) by one who
stands in such a relation to the person interested as to afford a reasonable
ground for supposing the motive for the communication to be innocent, or (3)
who is requested by the person interested to give the information.” The balance of the subdivision refers to
information provided by a former employer about the job performance of a person
who is applying for a new job.

Plaintiff argues that Civil Code
section 47, subdivision (c) is inapplicable because, (1) the statements were
not made without malice and (2) the statements were not made to an interested
party. Although not in the declarations,
plaintiff argues that there was ample evidence of malice. However, the trial court focused on the
declarations.

Plaintiff points out that Beckman,
although she was an administrative consultant to PBID, was not an interested
person. After the November 9, 2009,
board meeting, defendant called her and told her that plaintiff was a crook and
had embezzled funds. He also approached
her in the parking lot after the November 2009 meeting and told her that
plaintiff was a crook who had embezzled funds.
After these incidents, she refused to have anything further to do with
defendant. She certainly does not meet
any definition of an interested person.

Plaintiff also relies on the Duffey
declaration. The trial court summarized
the declaration by stating that defendant had come to Duffey’s business and
asked him to sign a petition. After
Duffey told defendant that he was not interested, defendant told Duffey that
plaintiff was a crook. Duffey was also a
private person who had no interest in the controversy between defendant and
plaintiff.

Defendant does not specifically
discuss Civil Code section 47, subdivision (c) in his brief. He thus fails to support his trial court
argument and fails to demonstrate any reason that his conduct is subject to the
litigation privilege defense under Civil Code section 47. We conclude that defendant’s statements were
not privileged because they were not within the litigation privilege of section
47.

Accordingly, we agree with the trial
court that plaintiff has shown a prima facie case that he
will prevail in his defamation action.

VI

DISPOSITION

The trial court’s order denying the
special motion to strike is affirmed.
Plaintiff is awarded his costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL
REPORTS

RICHLI

J.



We concur:





HOLLENHORST

Acting
P. J.





KING

J.