Pinkins v. Stempinski
Filed 8/21/12 Pinkins v. Stempinski 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
TONYA PINKINS,
Plaintiff
and Appellant,
v.
MERIDITH STEMPINSKI et al.
Defendants
and Respondents.
E053447
(Super.Ct.No.
RIC10023978)
OPINION
APPEAL
from the Superior Court
of
County. Gloria Trask,
Judge; John Vineyard, Temporary Judge (pursuant to Cal. Const., art VI,
§ 21).
title="">[1] Reversed.
Tonya
Pinkins, in pro. per., for Plaintiff and Appellant.
Mugg
& Harper and Leigh O. Harper; Edward V. Halsell for Defendant and
Respondent Meridith Stempinski.
Orrock,
Popka, Fortino & Brislin and Micheal A. Fortino, for Defendants and
Respondents Pam Stearns, Virginia Pharris, Christina Amezola, Debbie Gunter,
Emily Bares, Lisa Beauregard, Ana Grimes, and Centennial High School Theatre
Boosters.
I. INTRODUCTION
Plaintiff
Tonya Pinkins appeals from orders granting the special
Stempinski, Pam Stearns, Virginia Pharris, Christina Amezola, Debbie Gunter,
Emily Bares, Lisa Beauregard, Ana Grimes, and Centennial High School Theatre
Boosters, and awarding defendants attorney fees. We agree with Pinkins’s contention that the
trial court erred in holding that her lawsuit arose from events at an official
proceeding and statements made in connection with an issue of public
interest. We therefore reverse the
orders appealed from. Pinkins’s other
contentions of error are moot.
II. FACTS AND PROCEDURAL BACKGROUND
Pinkins
filed a complaint against defendants on December 13, 2010, alleging causes of action for
conspiracy to defame, libel per se, slander per se, intentional infliction of
emotional distress, negligent infliction of emotional distress, false light
invasion of privacy, and civil rights
violations. On January 11, 2011, defendants filed a special
motion to strike under Code of Civil Procedure
The background facts are taken from the complaint and from declarations
and exhibits the parties filed in support of and opposition to the anti-SLAPP
motion.
Defendant
Centennial High School Theatre Boosters (Booster Club) was organized in 2008 to
support the Centennial High School Theatre Arts Department. Centennial
High School is a public school
within the Corona-Norco Unified
School District. Stempinski was the head of the theater
department at Centennial High
School and the faculty advisor to the Booster
Club. Stearns was the vice-president of
ways and means of the Booster Club; Pharris was the treasurer, Amezola was the
secretary, and Bares was the vice-president of publicity. The other defendants attended the Booster
Club meeting at which the events underlying Pinkins’s complaint occurred.
Pinkins
was elected president of the Booster Club in October 2010. The following month, the Booster Club agreed
to produce and sell a compact disc (CD) of Christmas songs performed by
students to raise funds. Pinkins
obtained permission for the CD production and sale from the school’s
vice-president and from the assistant superintendent of the school district,
and the board members of the Booster Club approved establishing a PayPal
account to collect money from the CD sales and future fundraising events. Pinkins and her husband, Eric Winter, using
their own funds, worked with the students to record the CD.
Winter obtained
approval from the president of the high school football booster club to sell
CDs at a football game on November 19,
2010. That evening, Pinkins
and four other CD committee members set up a booth to sell the CD. Questions were raised as to whether Pinkins
had violated the Booster club by-laws by failing to get board approval to sell
the CD at the football game.
On
November 22, 2010, Stempinski
called a meeting of the Booster Club.
Her email stated that the agenda for the meeting was to discuss
communication issues, protocol, rules, and “what I feel needs to improve to
help MY DEPARTMENT.â€
(Capitalization and underline in original.) Stempinski was not a board member of the
booster club, and under the club’s bylaws, only the president was authorized to
call a special meeting. Pinkins
challenged the closed nature of the invitation.
Defendants
met at a Sizzler restaurant on November 29,
2010. Pinkins did not
attend, but her husband did attend and recorded the meeting. At the meeting, statements were allegedly
made that Pinkins had mishandled funds and that she had defamed the character
of another board member. A motion was
made to remove Pinkins as president of the Booster Club. The meeting went into closed session, and the
board voted to remove Pinkins as president.
Following the
meeting, Stempinski sent Pinkins an email stating, “I am sorry that you were
not able to attend tonight’s meeting. I
do appreciate your husband being in attendance.
I hope that he shared with you the information that was conveyed. He did leave before I requested that all of
the information shared at the meeting stayed at the meeting. I would like to make that request to you and
he [sic].†The minutes of the meeting were sent by mail
to Pinkins and others. The minutes
state: “Ms. Stempinski called
meeting to order. Stated that meeting
was called to discuss issues that have been brought to her attention that were
against by-laws. Only board members and
committee chairpersons were asked to attend to discuss these issues.†On December 13,
2010, the minutes were again published for distribution to members
of the Booster Club who had not been invited to attend the November 29
meeting. Stempinski disbanded the group
on December 15, 2010.
Following
additional briefing and a hearing, the trial court granted the anti-SLAPP
motion. The trial court found that “the
statements were made during an official proceeding authorized by law as to the
Board Members in meetings of a 501(c)(3)
corporation . . . .â€
The court also found “the meeting of November 29, 2010 was authorized by State law and
therefore, was an official proceeding,†and that the meeting “was in a public
place, open to the public and involved an important public interest.†The trial court further found that Pinkins
had failed to establish a probability of success on the merits of her claims.
Defendants filed
motions requesting attorney fees and costs.
The trial court ruled that the claimed attorney fees were reasonable and
granted the requests.
III. DISCUSSION
A. Overview of Section 425.16
The anti-SLAPP
statute, section 425.16, authorizes a defendant to file a special motion to
strike any cause of action arising from an act in furtherance of the
defendant’s constitutional rights of free speech or petition for redress of
grievances. (Flatley v. Mauro (2006) 39 Cal.4th 299, 311-312 (
chilling of the valid exercise of these rights through “abuse of the judicial
process†and, to this end, is to “be construed broadly.†(§ 425.16, subd. (a);
The anti-SLAPP
statute establishes a two-step procedure under which the trial court evaluates
the merits of a plaintiff’s cause of action at an early stage of the
litigation. (Flatley, supra, 39
Cal.4th at p. 312.) First, the defendant
must show that the cause of action arose from protected activity, i.e.,
activity in furtherance of the defendant’s constitutional right of petition or
free speech. (§ 425.16, subd.
(b)(1); Equilon Enterprises v. Consumer
Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon).) A defendant meets its threshold burden of demonstrating that
a cause of action arises from protected activity by showing that the act or
acts underlying the claim fit one or more of the categories described in
section 425.16, subdivision (e). (
82, 88.) An act in furtherance of a person’s right of petition
or free speech 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, or (4) 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.†(§ 425.16,
subd. (c).) Second, if the trial
court determines that the defendant has met its initial burden, the burden
shifts to the plaintiff to demonstrate a reasonable probability of prevailing
on the merits of its cause of action.
(§ 425.16, subd. (b)(1); Equilon,
supra, at p. 67.)
We independently
review orders granting or denying a motion to strike under section
425.16. (Flatley, supra, 39
Cal.4th at p. 325.)
Official Proceeding Authorized by Law
The
trial court ruled that defendants’ actions occurred at an official proceeding
authorized by law under section 425.16, subdivision (e)(1) and (2).
Pinkins contends
the trial court erred because the Booster Club meeting at which the challenged
actions took place did not qualify as an official
proceeding authorized by law within the meaning of the anti-SLAPP
statute. The trial court primarily
relied on Kibler v. Northern Inyo County
Local Hospital Dist. (2006) 39 Cal.4th 192, 198 (Kibler), in which our Supreme Court held that a hospital’s peer
review qualified as an “official proceeding authorized by law†under section
425.16, subdivision (e)(2). The
review “procedure is required under Business and Professions Code section 805
et seq., governing hospital peer review proceedings.†(Kibler,
supra, at p. 199.) Moreover, “[a] hospital’s decisions resulting
from peer review proceedings are subject to judicial review by administrative
mandate,†and as such, the proceedings have “a status comparable to that of
quasi-judicial public agencies . . . .†(Id. at
p. 200.) The court further explained
that the Legislature has given hospitals, through their peer review committees,
“the primary responsibility for monitoring the professional conduct of
physicians licensed in California,†and “these peer review committees oversee
‘matters of public significance,’ as described in†section 426.16, subdivision
(a). (Kibler, supra, at p.
201.)
determination that the Booster Club meeting was an official proceeding
authorized by law. First, unlike the
hospital peer review procedure at issue in Kibler,
no statute requires a public high school booster club meeting. Second, unlike in Kibler, the booster club’s decisions are not subject to judicial
review by administrative mandate.
Finally, unlike in Kibler, the
booster club does not have a status comparable to a quasi-judicial public
agency.
Other cases in
which courts have found “official proceedings authorized by law†are similarly
distinguishable on their facts. (E.g.
93 Cal.App.4th 993, 1009 [complaint filed with the Securities and Exchange
Commission alleging improper business practices] [Fourth Dist. Div. Two];
Cal.App.4th 733, 744 [statements made during public review period under
California Environmental Quality Act]; Mallard
v. Progressive Choice Ins. Co. (2010) 188 Cal.App.4th 531, 538 [subpoenaing
mental health records during statutorily mandated contractual arbitration of
uninsured motorist claim].) The Booster
Club meeting bears no similarity to such proceedings. We conclude that the trial court erred in
holding the booster club meeting was an official proceeding authorized by law.
Public Issue or Public Forum
The trial court
further ruled that defendants’ actions occurred in a public forum and concerned
an issue of public interest. In
Opportunity (1999) 19 Cal.4th 1106, our Supreme Court held that a defendant
bringing an anti-SLAPP motion to strike a cause of action arising from a
statement or writing made before a legally authorized proceeding or in
connection with an issue under consideration by a legally authorized official
proceeding (§ 425.16, subd. (e)(1) & (2)) need not separately show
that the statement or writing concerned an issue of public significance. (Briggs
v. Eden Council for Hope & Opportunity, supra, at pp. 1113-1123.)
However, to succeed on an anti-SLAPP motion under section 425.16, subdivision
(e)(3), the defendant must show that the challenged statement or writing was
“made in a place open to the public or a public forum in connection with an
issue of public interest.â€
(§ 425.16, subd. (e)(3).)
“A public forum is
a place open to the use of the general public ‘“for purposes of assembly,
communicating thoughts between citizens, and discussing public
questions.â€â€™ [Citations.]†(Weinberg
v. Feisel (2003) 110 Cal.App.4th 1122, 1130 (Weinberg).) Thus, for
example, courts have held that internet news groups accessible to the public
are public forums within the meaning of section 425.16. (Barrett
v. Rosenthal (2006) 40 Cal.4th 33, 41 fn. 4; accord ComputerXpress, Inc. v. Jackson, supra, 93 Cal.App.4th at pp. 1006-1007.) In Damon
v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, the court held
that meetings of homeowners association boards of directors were public forums
when the board meetings were televised and open to all interested parties, and
the meetings served a function similar to that of a governmental body. (Id. at
p. 476.) In contrast, a forum to which
access is selective is not a public forum within the meaning of the anti-SLAPP
statute. (See, e.g.,
of token collectors was not a public forum]; Kurwa v. Harrington, Foxx, Dubrow & Canter, LLP (2007) 146
Cal.App.4th 841, 846 [a business letter to the president of an HMO from the
attorney for a shareholder of a corporation providing services to HMO members
did not meet the definition of a public forum].)
In
1077, the court held that a homeowners association meeting was a public forum,
and a board member’s statements that a past president had stolen money concerned
an issue of public interest. The court
explained: “‘A “public forum†is
traditionally defined as a place that is open to the public where information
is freely exchanged.’ [Citation.] Homeowners association board meetings
constitute a public forum within the meaning of the anti-SLAPP statute because
they ‘serve [] a function similar to that of a governmental body. As our Supreme Court has recognized, owners
of planned development units “‘comprise a little democratic
subsociety . . . .’â€
[Citations.] In exchange for the
benefits of common ownership, the residents elect a[] legislative/executive
board and delegate powers to this board.
This delegation concerns not only activities conducted in the common
areas, but also extends to life within “‘the confines of the home
itself.’†[Citations.] A homeowners association board is in effect
“a quasi-government entity paralleling in almost every case the powers, duties,
and responsibilities of a municipal government.†[Citation.]’
[Citation.] [¶] Furthermore, ‘[b]ecause of a homeowners
association board’s broad powers and the number of individuals potentially
affected by a board’s actions, the Legislature has mandated that boards hold
open meetings and allow the members to speak publicly at the meetings. [Citations.]
These provisions parallel California’s open meeting laws regulating
government officials, agencies and boards.
[Citation.] Both statutory
schemes mandate open governance meetings, with notice, agenda and minutes
requirements, and strictly limit closed executive sessions. [Citation.]’
[Citation.]†(
Defendants argue
that because the meeting was held in a restaurant, it was held in a public
place. However, the meeting called by
Stempinski was by invitation only; it was not open to all the members of the
Booster Club, but only to board members and committee chairpersons. After the meeting was over, Stempinski
requested privacy about the meeting.
Even if we assume for purposes of argument that the meeting took place
in a public forum, the defendants must also show under section 425.16,
subdivision (e)(3) that the challenged actions or statements concerned an issue
of public interest.
“The statute does
not provide a definition for ‘an issue of public interest,’ and it is doubtful
an all-encompassing definition could be provided. However, the statute requires that there be
some attributes of the issue which make it one of public, rather than merely
private, interest. A few guiding
principles may be derived from decisional authorities. First, ‘public interest’
does not equate with mere curiosity.
[Citations.] Second, a matter of
public interest should be something of concern to a substantial number of
people. [Citations.] Thus, a matter of concern to the speaker and
a relatively small, specific audience is not a matter of public interest. [Citations.]
Third, there should be some degree of closeness between the challenged statements
and the asserted public interest [citation]; the assertion of a broad and
amorphous public interest is not sufficient [citation]. Fourth, the focus of the speaker’s conduct
should be the public interest rather than a mere effort ‘to gather ammunition
for another round of [private] controversy . . . .’ [Citation.]
Finally, ‘those charged with defamation cannot, by their own conduct,
create their own defense by making the claimant a public figure.’
A person cannot turn otherwise private information into a matter of
public interest simply by communicating it to a large number of people. [Citations.]â€
(Weinberg,
1132-1133.) The Weinberg court listed a number of examples of matters of public
interest, including statements about a lawsuit against a church that had
received broad media coverage (Church of Scientology v. Wollersheim
(1996) 42 Cal.App.4th 628, 651, disapproved on another ground in Equilon, supra, 29 Cal.4th at p. 68;
statements about the located of a battered women’s shelter that had generated
public controversy and had been the subject of local land use hearings (Averill
v. Superior Court (1996) 42 Cal.App.4th 1170, 1175); allegations of
domestic violence against a political consultant who had raised the issue of
domestic violence in political campaigns (Sipple v. Foundation for Nat.
Progress (1999) 71 Cal.App.4th 226, 238-239); statements about
self-government for 3,000 residents of a gated community (Damon v. Ocean
Hills Journalism Club, supra, 85 Cal.App.4th at p. 479), and statements
about a participant in a nationally broadcast television show (Seelig v.
Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 807-808).
The
above-listed cases with Rivero v. American Federation of State, County
and Municipal Employees, AFL-CIO (2003)
105 Cal.App.4th 913 (Rivero) in which the former supervisor of a
group of eight janitors on a university campus was demoted and then fired
following an investigation of allegations of misconduct that were found to be
unsubstantiated. Thereafter, the
employees union published and distributed three documents containing claims of
misconduct by Rivero. (Id. at pp.
916-917.) The Court of Appeal concluded
that the publications did not involve a matter of public interest. The court reasoned, “Here, the Union’s statements
concerned the supervision of a staff of eight custodians by Rivero, an
individual who had previously received no public attention or media
coverage. Moreover, the only individuals
directly involved in and affected by the situation were Rivero and the eight
custodians. Rivero's supervision of
those eight individuals is
(Id. at p. 924.) The court
also rejected the claim that the defendant could turn a private matter into one
of public interest simply by publishing it to numerous people. “If the mere publication of information in a
union newsletter distributed to its numerous members were sufficient to make
that information a matter of public interest, the public-issue limitation would
be substantially eroded, thus seriously undercutting the obvious goal of the
Legislature that the public-issue requirement have a limiting effect.†(Id. at p. 926.)
The court in
and found it persuasive because the defendant in Weinberg had “failed to demonstrate that his dispute with plaintiff
was anything other than a private dispute between private parties. The fact that defendant allegedly was able to
vilify plaintiff in the eyes of at least some people establishes only that he
was at least partially successful in his campaign of vilification; it does not
establish that he was acting on a matter of public interest.†(Weinberg,
supra, 110 Cal.App.4th at pp.
1133-1134.)
In
Cross v. Cooper (2011) 197
Cal.App.4th 357, the court construed the term “public interest†“‘to include
not only governmental matters, but also private conduct that impacts a broad
segment of society and/or that affects a community in a manner similar to that
of a government entity.
[Citations.]’ [Citations.]†(Id.
at p. 372.) However, courts have held
that issues that involve only a small group of people do not meet the
definition of public interest under section 425.16, subdivision (e)(3). (See, e.g., Olaes v. Nationwide Mutual Ins. Co. (2006) 135 Cal.App.4th 1501,
1508-1511 [private employer’s sexual harassment procedure was not a
quasi-governmental proceeding and, although elimination of sexual harassment
implicates a public interest, a private employer’s investigation of a small
group of people did not rise to a public interest under section 425.16].)
Here,
defendants define the issue as follows:
“The purpose of the meeting on November 29, 2010 was to consider
the proper functioning of the Booster Club and whether plaintiff failed to
follow Booster Club bylaws in connection with the raising of funds to support a
department of a public high school.â€
Thus, the challenged conduct involved only a small group of people, and
it did not affect a community in a manner similar to that of a governmental
entity. (Cross v. Cooper, supra,
197 Cal.App.4th at p. 372.) Under case
law interpreting “public interest†within the meaning of section 425.16,
subdivision (e)(3), extending protection of the anti-SLAPP statute to such an
issue would be unwarranted, and we decline to do so. We conclude the trial court erred in granting
defendants’ anti-SLAPP motion. Pinkins’s
additional arguments that the Booster Club was engaged in illegal activities
and that defendants’ language was unprotected commercial speech are moot.
Attorney Fees
Because
we reverse the trial court’s order granting the anti-SLAPP motion, the award of
attorney fees must also be reversed.
IV. DISPOSITION
The
judgment is reversed. Costs are awarded
to plaintiff and appellant.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P.J.
CODRINGTON
J.
name="_ftn1" title=""> [1] Commissioner Vineyard granted defendants’
special motion to strike under Code of Civil Procedure section 425.16. Judge Trask granted defendants’ motion for
attorney fees.
name="_ftn2" title=""> [2] All further statutory references are to the
Code of Civil Procedure unless otherwise indicated.
