Geiser v. Kuhns ( 2022 )

IN THE SUPREME COURT OF
CALIFORNIA
GREGORY GEISER,
Plaintiff and Appellant,
v.
PETER KUHNS et al.,
Defendants and Appellants.
S262032
Second Appellate District, Division Five
B279738
Los Angeles County Superior Court
BS161018, BS16019, BS161020
August 29, 2022
Justice Liu authored the opinion of the Court, in which Chief
Justice Cantil-Sakauye and Justices Corrigan, Kruger,
Groban, Jenkins, and Guerrero concurred.
GEISER v. KUHNS
S262032
Opinion of the Court by Liu, J.
The Legislature enacted Code of Civil Procedure section
425.16 to combat “a disturbing increase” in Strategic Lawsuits
Against Public Participation (SLAPPs): “lawsuits brought
primarily to chill the valid exercise of the constitutional rights
of freedom of speech and petition for the redress of grievances.”
(Code Civ. Proc., § 425.16, subd. (a); all undesignated statutory
references are to this Code.) In FilmOn.com Inc v. DoubleVerify
Inc. (2019) 7 Cal.5th 133, 143 (FilmOn), we observed that “[i]n
the paradigmatic SLAPP suit, a well-funded developer limits
free expression by imposing litigation costs on citizens who
protest, write letters, and distribute flyers in opposition to a
local project.” (See Assem. Com. on Judiciary, Analysis of Sen.
Bill No. 1296 (1997–1998 Reg. Sess.) as amended June 23, 1997,
pp. 2–3.) As the Assembly Committee on Judiciary observed,
approximately 25 percent of SLAPP suits “relate to development
and zoning . . . .” (Assem. Com. on Judiciary, Analysis of Sen.
Bill. No. 1296, supra, as amended June 23, 1997, at p. 3.) The
committee recognized that “such lawsuits are often pernicious,
masquerading as standard defamation and interference with
prospective economic advantage litigation, while really brought
by well-heeled parties who can afford to misuse the civil justice
system to chill the exercise of free speech . . . by the threat of
impoverishing the other party.” (Ibid.) To protect against these
abuses, the Legislature has directed that the anti-SLAPP
statute “shall be construed broadly.” (§ 425.16, subd. (a).)
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Opinion of the Court by Liu, J.
As relevant here, the statute’s protection extends to “any
. . . conduct in furtherance of the exercise of the constitutional
right . . . of free speech in connection with a public issue or an
issue of public interest.” (§ 425.16, subd. (e)(4) (hereafter
section 425.16(e)(4)).) This provision — the so-called catchall
provision in the statute’s enumeration of “ ‘act[s] in furtherance
of a person’s right of petition or free speech’ ” (§ 425.16,
subd. (e)) — was the subject of our recent decision in FilmOn.
There, we articulated a two-step inquiry for deciding whether
the activity from which a lawsuit arises falls within section
425.16(e)(4)’s protection: first, we ask what public issue or
issues the challenged activity implicates, and second, we ask
whether the challenged activity contributes to public discussion
of any such issue. (FilmOn, supra, 7 Cal.5th at pp. 149–150.) If
the answer to the second question is yes, then the protections of
the anti-SLAPP statute are triggered, and the plaintiff in the
underlying lawsuit must establish “a probability” of prevailing
before the action may proceed. (§ 425.16, subd. (b).)
The case before us features a sidewalk picket purporting
to protest a real estate company’s business practices after the
company evicted two long-term residents from their home. The
Court of Appeal held the activity at issue to be beyond the scope
of anti-SLAPP protection, concluding that the picket did not
implicate a public issue and concerned only a private dispute
between the company and the residents it had evicted. We
granted review to clarify the proper application of FilmOn’s two-
part test. Applying both steps of the FilmOn analysis, we hold
that the sidewalk protest constitutes protected activity within
the meaning of section 425.16(e)(4). We remand for further
proceedings consistent with this opinion.
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Opinion of the Court by Liu, J.
I.
Mercedes and Pablo Caamal shared a home in Rialto,
California for nearly ten years. They purchased the property for
$450,000 in 2006 using funds from two mortgages they obtained
from Wells Fargo without any cash up front. Both Caamals lost
their jobs in the aftermath of the financial crisis of 2008; by
2012, they had fallen behind on their mortgage payments. In
September 2015, the mortgagor held a foreclosure auction, at
which an affiliate of Wedgewood, LLC — a company “focused on
the purchase, rehabilitation, and resale of distressed
properties” — purchased the home for $284,000. Wedgewood
filed unlawful detainer actions to evict the Caamals.
The Caamals sought help from the Alliance of Californians
for Community Empowerment (ACCE), an organization whose
mission is “to save homes from foreclosures” and to “fight
against the displacement of long-term residents.” On December
17, 2015, several ACCE supporters — including the
organization’s Los Angeles director, Peter Kuhns —
accompanied the Caamals to Wedgewood’s headquarters. The
group requested a meeting with Gregory Geiser, Wedgewood’s
chief executive officer, to discuss the possibility of the Caamals
repurchasing their home. They set up a tent in the building’s
lobby and refused to leave until such a meeting transpired.
Geiser alleges that one of the activists shoved a Wedgewood
employee when that employee attempted to remove the tent.
Wedgewood’s chief operating officer and its general counsel
eventually offered to meet with the Caamals if the ACCE
activists vacated the premises. The Caamals agreed, and the
ACCE activists departed.
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Opinion of the Court by Liu, J.
At the meeting, the Caamals expressed their desire to
repurchase the property. Without discussing a specific price,
Wedgewood employees proposed to stay the eviction proceedings
for several weeks to enable the Caamals to obtain financing. In
January 2016, the parties made this agreement known to the
court; the eviction proceedings were stayed for 60 days pending
negotiation of the proposed repurchase. Although the details of
those negotiations are disputed, the parties agree that on March
12, 2016 — shortly before the 60-day period expired — the
Caamals mailed to Wedgewood, on ACCE letterhead, a letter
asserting they had secured prequalification for a $300,000 loan.
Wedgewood found that unacceptable. The Caamals remained in
their home as the 60-day period lapsed.
On March 23, 2016, the Caamals and several ACCE
supporters returned to Wedgewood’s headquarters and sought
another meeting with Geiser. Wedgewood’s chief operating
officer again offered to meet with the Caamals and discuss the
situation if the ACCE supporters agreed to disperse. The
Caamals again accepted, and the protestors again departed. No
agreement was reached at the meeting. Over the next few days,
articles describing the controversy appeared in the Huffington
Post and in the Spanish-language newspaper La Opinión.
On March 30, 2016, Wedgewood locked the Caamals out of
the property. The Caamals again turned to ACCE. Together,
they organized a demonstration that evening on the public
sidewalk outside of Geiser’s residence in Manhattan Beach.
About 25 to 30 demonstrators attended. According to sworn
testimony from Kuhns and the Caamals, the demonstrators
“held signs, sang songs, and gave short speeches in protest of
Wedgewood”; the record does not disclose the precise content of
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Opinion of the Court by Liu, J.
the signs, songs, or speeches. The only utterance that the record
discloses verbatim is a chant used by the demonstrators as they
picketed outside Geiser’s residence: “Greg Geiser, come outside!
Greg Geiser, you can’t hide!” Around 10:00 p.m., Pablo Caamal
thanked the demonstrators for their support and declared that
the demonstration was over. The demonstrators then dispersed.
Multiple Manhattan Beach police officers were present for
much of the demonstration, as was Gilbert Saucedo, a member
of the National Lawyers Guild who volunteered to observe.
According to Saucedo, the demonstration had been organized by
ACCE “to protest unfair and deceptive practices” used by
Wedgewood in acquiring the property and in evicting the
Caamals from their home. Saucedo relayed this information to
the commanding officer at the scene. The officers remained
present throughout the demonstration and did not intervene.
According to Saucedo’s declaration, “everyone behaved
peacefully and there were no threats of violence at any time.”
Geiser saw things differently. Two days after the
demonstration, Geiser filed petitions for civil harassment
restraining orders against Kuhns and the Caamals. The
petitions characterized the picketing as an “assault” on his home
by a “mob” that he believed threatened his and his wife’s safety.
The petitions sought to keep Kuhns and the Caamals at least
100 yards away from Geiser’s home and from the Wedgewood
headquarters. The trial court issued a temporary restraining
order enjoining Kuhns and the Caamals from “picketing or
otherwise demonstrating in front of [Geiser’s] personal
residence.”
The litigation attracted more media attention: Breitbart
News published an article characterizing the controversy as “a
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Opinion of the Court by Liu, J.
rare case of a senior executive fighting back against radical left-
wing groups like the now-defunct Association of Community
Organizers For Reform Now (ACORN).” The article went on to
argue that ACCE’s policy agenda concerning foreclosures and
evictions could “put owners of rental properties at real risk.”
Kuhns and the Caamals moved to strike the civil
harassment petitions under the anti-SLAPP statute. Their
motion alleged that the demonstration implicated a public issue
because the business practices by which Wedgewood evicted the
Caamals exemplified “one of the many stories of hundreds of
thousands who lost their homes since 2008 in the Great
Recession.” Geiser voluntarily dismissed the petitions before
the motions could be resolved. Within days of the dismissals,
Wedgewood issued a press release alleging that it had
endeavored to negotiate a settlement with the Caamals and that
despite “the company’s sincere good-faith efforts,” ACCE
“unilaterally decided to pursue its own agenda to the detriment
of the Caamals.” The press release decried ACCE for
“portray[ing] the Caamal family as victims, while exploiting a
very emotional issue . . . to further its own agenda.”
Motions for attorneys’ fees followed. In those motions,
Kuhns and the Caamals asserted that, as prevailing parties on
an anti-SLAPP motion to strike, they were entitled to full
recovery of attorneys’ fees — a total of $84,150 — under section
425.16, subdivision (c)(1).
The trial court rejected the argument that Kuhns and the
Caamals had prevailed under the anti-SLAPP statute. In the
court’s view, the March 30 demonstrations did not implicate a
public issue because they “did not concern people other than the
Caamals.” In so holding, the trial court relied primarily upon
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the declarations of Kuhns and the Caamals, each of which
asserted that the March 30 demonstration had been undertaken
exclusively to facilitate the repurchase of the property. The trial
court nonetheless exercised its discretion to award attorneys’
fees under a different statutory provision, section 527.6,
explaining that although Kuhns and the Caamals would not
have prevailed on their anti-SLAPP motions, they were still
“prevailing part[ies]” within the meaning of that statute. The
trial court accordingly awarded $40,000 in attorneys’ fees, less
than half the amount that Kuhns and the Caamals sought under
the anti-SLAPP statute. The Court of Appeal affirmed.
We granted review and deferred briefing pending our
decision in FilmOn, where we construed the catchall provision
of the anti-SLAPP statute. Section 425.16, subdivision (e) sets
forth four types of activity that trigger the statute’s protections.
The fourth — the catchall — covers “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(e)(4).) In
FilmOn, we articulated a two-step inquiry to determine whether
the conduct from which the lawsuit arises falls within the
catchall. “First, we ask what ‘public issue or . . . issue of public
interest’ ” is implicated by the challenged activity. (FilmOn,
supra, 7 Cal.5th at p. 149.) Second, we look to the “functional
relationship” between the challenged activity and the public
issue it implicates, and ask whether the activity contributed to
public discussion of that issue. (Id. at pp. 149–152.)
We transferred this case to the Court of Appeal for
reconsideration in light of FilmOn. The Court of Appeal again
affirmed, maintaining that the demonstration outside Geiser’s
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Opinion of the Court by Liu, J.
home “focused on coercing Wedgewood into selling back the
property to Ms. Caamal at a reduced price, which was a private
matter concerning a former homeowner and the corporation that
purchased her former home and not a public issue.” Like the
trial court, the Court of Appeal rested its holding on the
declarations submitted in support of the anti-SLAPP motion. It
emphasized that the Caamals disclosed in their declarations
that their actions were motivated by a desire to repurchase their
former residence, and that the declarations neither endeavored
to detail “Wedgewood’s residential real estate business
practices” nor to explain how such “large scale fix-and-flip”
operations were related to the Great Recession and its attendant
ills. On this basis, the Court of Appeal reasoned that the true
“motivation” for the protests “was purely personal to the
Caamals and did not address any societal issues of residential
displacement, gentrification, or the root causes of the great
recession.” The Court of Appeal also emphasized that “[t]he only
evidence of the specific content of the speeches during the
demonstration at plaintiff’s residence was that the
demonstrators demanded [Geiser] personally come out of his
home.”
The Court of Appeal went on to address the second step of
the FilmOn analysis: “[E]ven if we accepted defendants’
contention that the demonstrations concerned the issues of
displacement of residents due to residential real estate business
practices, gentrification, and large scale fix-and-flip real estate
practices leading to the great recession, those demonstrations
did not qualify for statutory protection because they did not
further the public discourse on those issues.” It justified this
conclusion with the same reasoning that animated its first-step
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Opinion of the Court by Liu, J.
analysis: that the demonstrations were undertaken only “for
the purpose of coercing Wedgewood into selling back the
property” to the Caamals and therefore “did not further the
public discourse.”
Justice Baker dissented. He noted our observation in
FilmOn that “[i]n the paradigmatic SLAPP suit, a well-funded
developer limits free expression by imposing litigation costs on
citizens who protest, write letters, and distribute flyers in
opposition to a local project.” (FilmOn, supra, 7 Cal.5th at
p. 143.) In his view, that sentence “suffice[d] almost by itself to
point the way to the correct result here. . . . Well-funded
developer? Check. Citizen protest of a local (evict-and-flip
housing) project? Check. Limits on free expression by imposing
litigation costs? Check. . . . [T]his case has many of the
hallmarks of vintage SLAPP conduct.”
Turning to FilmOn’s two-step test, Justice Baker
emphasized Kuhns’s characterization of ACCE as “an entity
dedicated to ‘sav[ing] homes from foreclosures and the fight
against displacement of long[-]term residents in our
communities.’ ” “With that mission,” he explained, “ACCE’s
participation in the protest is enough by itself to infer [that] the
content of the public protest outside Geiser’s home concerned
unfair (at least as perceived by ACCE) housing practices that
displace long-time community residents.” Rejecting the Court
of Appeal’s “parsing” of the Caamals’ declarations, he would
have held that the demonstration outside Geiser’s residence
implicated public issues concerning “displacement of long-term
community residents by unfair foreclosure and fix-and-flip
housing practices.” Proceeding to FilmOn’s second step, he
explained that “[t]he identity of defendants, the audience they
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sought, and the timing and location of the speech all show a
degree of closeness between the protest and the ongoing public
conversation about housing displacement.” “Stated simply,” he
concluded, “the public protest contributed to the public debate.”
We again granted review.
II.
In FilmOn, we observed that “[o]ur courts have ably
distilled the characteristics of ‘a public issue or an issue of public
interest.’ (§ 425.16, subd. (e)(4).)” (FilmOn, supra, 7 Cal.5th at
p. 149, citing Rivero v. American Federation of State, County
and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th
913, 919–924 (Rivero) and Weinberg v. Feisel (2003)
110 Cal.App.4th 1122, 1132–1133.) The court in Rivero, upon
surveying the case law, said that statements found to implicate
a public issue generally “concerned a person or entity in the
public eye[,] . . . conduct that could directly affect a large number
of people beyond the direct participants[,] . . . or a topic of
widespread, public interest.” (Rivero, at p. 924, citations
omitted.) The Weinberg court distilled “some attributes of [an]
issue which make it one of public, rather than merely private,
interest,” including the fact that the issue is “of concern to a
substantial number of people” or has “been the subject of
extensive media coverage.” (Weinberg, at pp. 1132, 1133.)
At the same time, our opinion in FilmOn described as “less
than satisfying” various decisions that had rejected anti-SLAPP
motions on the ground that the activity from which the litigation
arose was not in connection with a public issue. (FilmOn, supra,
7 Cal.5th at p. 149; see ibid., citing Bikkina v. Mahadevan (2015)
241 Cal.App.4th 70, 85 (Bikkina); World Financial Group, Inc.
v. HBW Ins. & Financial Services, Inc. (2009) 172 Cal.App.4th
10GEISER v. KUHNS
Opinion of the Court by Liu, J.
1561, 1572 (World Financial Group); Mann v. Quality Old Time
Service, Inc. (2004) 120 Cal.App.4th 90, 111 (Mann).) Although
we expressed no opinion as to the appropriate outcomes in those
cases, we disapproved their reasoning — in particular, their
insistence that the challenged conduct implicated only a private
dispute and not an issue of public interest. (FilmOn, at p. 149.)
In Bikkina, an engineering professor accused a student he
had once advised of having falsified data in two academic papers
on carbon sequestration. (Bikkina, supra, 241 Cal.App.4th at
pp. 75–76.) The professor relayed the accusations to the
student’s superiors and colleagues, once at an academic
presentation and another time at the student’s place of
employment. (Id. at p. 76.) The student sued for libel; the
professor responded with an anti-SLAPP motion, arguing that
his allegedly libelous statements were entitled to anti-SLAPP
protection because they were made in connection with “public
discourse on carbon sequestration and its impacts on global
warming.” (Id. at p. 77.) The court disagreed. In its view, the
professor’s statements were “about data in papers on carbon
sequestration” — specifically, allegations “about contaminated
quartz samples and plagiarism in two [academic] papers” — and
not about “climate change generally.” (Id. at p. 83.)
In World Financial Group, after several former employees
of an insurance company took jobs with a competitor, the
insurance company sued, alleging that the competitor had
unlawfully solicited the former employees and that the former
employees were using confidential information and trade secrets
unlawfully to benefit the competitor. (World Financial Group,
supra, 172 Cal.App.4th at pp. 1565–1566.) The competitor
invoked the anti-SLAPP statute, asserting that its
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communications were protected because they pertained to
“ ‘workforce mobility and free competition.’ ” (Id. at p. 1572.)
The court rejected this argument, insisting that “defendants’
communications were not ‘about’ these broad topics . . . . They
were merely solicitations of a competitor’s employees and
customers undertaken for the sole purpose of furthering a
business interest.” (Ibid.)
In Mann, two independent contractors for a company
spread false accusations to customers and to government
agencies that the company “used illegal and carcinogenic
chemicals” for maintaining industrial water systems. (Mann,
supra, 120 Cal.App.4th at p. 100.) After the company sued, the
contractors asserted that the alleged statements implicated an
issue of public interest. (Id. at p. 111.) The court acknowledged
that “pollution can affect large numbers of people and is a
matter of general public interest,” but held that the statements
“were not about pollution or potential public health and safety
issues in general, but about [the company’s] specific business
practices.” (Ibid.)
Was the speech at issue in Bikkina about data in papers
on carbon sequestration or about climate change? Were the
communications at issue in World Financial Group about the
defendant’s own business interests or about the practice and
market implications of imposing non-compete clauses? Were the
statements at issue in Mann about one company’s specific
business practices or about pollution and public health and
safety? We said in FilmOn that to the extent these decisions
focused “on discerning a single topic of speech,” their reasoning
was “less than satisfying” because “speech is rarely ‘about’ any
single issue.” (FilmOn, supra, 7 Cal.5th at p. 149.)
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We articulated the two-part test in FilmOn to steer courts
away from this mode of analysis. In order to determine the
scope of section 425.16(e)(4)’s protection, we first “ask what
‘public issue or [] issue of public interest’ ” is implicated by the
challenged activity. (FilmOn, supra, 7 Cal.5th at p. 149.)
Second, we look to the “functional relationship” between the
challenged activity and the “public conversation” about that
issue, and ask whether the activity “ ‘contribute[s]’ ” to public
discussion of the issue. (Id. at pp. 149–150.) We explained that
it is FilmOn’s second step, not its first, that usually plays the
more prominent role in screening anti-SLAPP motions because
caselaw “demonstrate[s] that virtually always, defendants
succeed in drawing a line — however tenuous — connecting
their speech to an abstract issue of public interest.” (Id. at
p. 150.) We note, however, that “virtually always” does not
mean “always”; a defendant may fail to meet its first-step
burden. And where the first step is satisfied, it performs an
important function in the inquiry: It operates as a lens that
focuses the analysis at the second step. In other words, to assess
whether the challenged activity contributes to discussion of a
public issue, we must identify some public issue that the
challenged activity purports to address.
III.
We review de novo whether Kuhns and the Caamals have
met their burden of demonstrating that the activity from which
the lawsuit arises falls within the scope of the anti-SLAPP
statute’s protection. (Park v. Bd. of Trs. of Cal. State Univ.
(2017) 2 Cal.5th 1057, 1061, 1067.)
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A.
The Court of Appeal held that defendants’ demonstration
outside Geiser’s home “focused on . . . a private matter
concerning a former homeowner and the corporation that
purchased her former home,” and not on “any societal issues of
residential displacement, gentrification, or the root causes of the
great recession.” We do not see why defendants’ expressive
activity fits only one characterization and not both.
The Court of Appeal, applying FilmOn, emphasized that
“[t]he only evidence of the specific content of the speeches during
the demonstration at plaintiff’s residence was that the
demonstrators demanded plaintiff personally come out of his
home.” We find unpersuasive this narrow parsing of the record
because it ignores inferences that can reasonably be drawn from
the events described in defendants’ declarations.
As an initial matter, even a narrow focus on the words of
the declarations yields a clue that defendants’ protest outside
Geiser’s home implicated a public issue. Saucedo, the volunteer
observer from the National Lawyers Guild, said in his
declaration that the purpose of the demonstration was “ ‘to
protest unfair and deceptive practices used by Wedgewood . . .
in acquiring the real property of [the Caamals], and evicting
them from their home.’ ” As Justice Baker observed, “The
reference to ‘practices’ suggests conduct that includes — but
extends beyond — the Caamals’ own situation.” (Cf. Alch v.
Superior Court (2004) 122 Cal.App.4th 339, 379 [“ ‘Pattern-or-
practice suits, by their very nature, involve claims of classwide
discrimination.’ ”].)
Separate and apart from Saucedo’s declaration, there are
several indicators that the protest implicated public issues
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Opinion of the Court by Liu, J.
concerning unfair foreclosure practices and residential
displacement. The record shows that the Caamals were long-
term residents who faced foreclosure after they lost their jobs in
the Great Recession. After Wedgewood purchased the Caamals’
residence at a foreclosure auction and moved to evict them, the
Caamals sought assistance from ACCE, an advocacy
organization committed to “fight[ing] against the displacement
of long[-]term residents” and to “sav[ing] homes from
foreclosures.” ACCE evidently viewed the Caamals’ situation as
an occasion to further this advocacy mission. It first endeavored
to assist the Caamals by organizing sit-ins at Wedgewood’s place
of business. When that failed, it took its views to a public
sidewalk, where it staged the demonstration at issue here, in
which the Caamals and approximately 25 to 30 ACCE members
picketed.
In this context, the picketers’ chant — “Greg Geiser, come
outside! Greg Geiser, you can’t hide!” — cannot be reduced to a
bare demand that Geiser emerge from his home. It can
reasonably be understood to mean that Geiser should be
ashamed of, or accountable for, the business practices by which
the Caamals were displaced from their long-term residence, and
that Geiser could not hide from that accountability. Some may
not find that slogan especially compelling, but as we explained
in FilmOn, “our inquiry does not turn on a normative evaluation
of the substance of the speech.” (FilmOn, supra, 7 Cal.5th at
p. 151.)
Moreover, there is no evidence that the 25 to 30 ACCE
members who participated in this public demonstration at 9:00
p.m. on a Wednesday evening had any personal connection with,
or loyalty to, the Caamals in particular. It is common knowledge
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that foreclosures, evictions, and inadequate housing are major
issues in communities throughout California, and the
participation of more than two dozen members of an advocacy
group dedicated to fighting foreclosures and residential
displacement must be considered against that backdrop. (See
Ohio Bell Tel. Co. v. Comm’n (1937) 301 U.S. 292, 301 [“Courts
take judicial notice of matters of common knowledge.”]; cf. ibid.[“They take judicial notice that there has been a depression, and
that a decline of market values is one of its concomitants.”].) As
Justice Baker explained, “the only apparent shared tie among
everyone present was the desire to engage in public speech
consistent with ACCE’s mission and the issue of public interest
identified here: combatting unfair housing and foreclosure
practices that displace long-term community residents.”
The Court of Appeal overlooked the ways in which these
contextual considerations inform the expressive meaning of the
protest outside Geiser’s home. It is true that FilmOn, in stating
the two-step test for determining whether expressive activity
falls within section 425.16(e)(4)’s protection, said that the first
step poses “a question we answer by looking to the content of the
speech” and that “[i]t is at the [second] stage that context proves
useful.” (FilmOn, supra, 7 Cal.5th at pp. 149–150.) Geiser
argues that this language supports the Court of Appeal’s
parsing of the picketers’ chant. But we had no occasion in
FilmOn to probe the contours of the first-step analysis, and we
made no ruling on any first-step dispute. Instead, we assumed
without deciding that the speech at issue did implicate issues of
public interest, and we focused our inquiry on the second-step
question of whether the defendant’s statements — in light of the
“context” in which they were made, “including audience,
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speaker, and purpose” — contributed to public debate on those
issues. (Id. at p. 152.) The public issues we assumed to be
implicated (i.e., copyright violations and children’s exposure to
adult media) were apparent from the content of the defendant’s
speech. (Ibid.) To the extent that part of our opinion in FilmOn
suggests the first-step inquiry focuses on “the content of the
speech” (id. at p. 149) without consideration of its “context” (id.
at p. 150), it is not controlling because that issue was not
presented in FilmOn and “ ‘ “cases are not authority for
propositions not considered” ’ ” (B.B. v. City of Los Angeles
(2020) 10 Cal.5th 1, 11; see People v. Ceballos (1974) 12 Cal.3d
470, 481.)
Our central theme in FilmOn was that, in analyzing
whether a statement falls within the ambit of section
425.16(e)(4), “[i]t would be all but impossible . . . to justify
ignoring the ordinary contextual cues affecting how people
generally evaluate speech.” (FilmOn, supra, 7 Cal.5th at p. 145;
see id. at p. 146 [“[t]he court below erred” by analyzing speech
“deracinated of context”]; ibid. [“section 425.16 invites courts to
consider the context in which statements were made”]; id. at
p. 148 [“context matters under the catchall provision”].)
Although we made these observations in elaborating the second-
step inquiry, they also apply at the first step. “Language, of
course, cannot be interpreted apart from context” (Smith v.
United States (1993) 508 U.S. 223, 229), and what a particular
statement or act is “about” often cannot be discerned from words
alone.
The history of the anti-SLAPP statute is instructive on
this point. As originally enacted, section 425.16, subdivision (e)
enumerated three categories of protected activity, each of which
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GEISER v. KUHNS
Opinion of the Court by Liu, J.
required some written or oral statement. In 1997, the
Legislature added the catchall provision (§ 425.16, subd. (e)(4))
in order to ensure that “expressive conduct” would be protected.
(Sen. Judiciary Com., Analysis of Sen. Bill. No 1296 (1997–1998
Reg. Sess.) as amended May 12, 1997, pp. 3–4; see Stats. 1997,
ch. 271, § 1.) Drawing upon this legislative history, we have said
that “[a]t a minimum, [section 425.16(e)(4)] shields expressive
conduct — the burning of flags, the wearing of armbands, and
the like — that, although not a ‘written or oral statement or
writing’ (§ 425.16, subd. (e)(1)–(3)), may similarly communicate
views regarding ‘matters of public significance.’ ” (Wilson v.
Cable News Network, Inc. (2019) 7 Cal.5th 871, 893; id. at p. 893,
fn. 9; see FilmOn, supra, 7 Cal.5th at pp. 143–144 [section
425.16, subd. (e)(1)–(3) defines protected conduct “not only by its
content, but also by its location, its audience, and its timing,”
and such “contextual information” is not excluded from
consideration under section 425.16(e)(4)]; id. at p. 148 [“speaker,
audience, and purpose” are “contextual factors” to be considered
under section 425.16, including the catchall provision].)
In Tinker v. Des Moines School District (1969) 393 U.S.
503, 504, for example, a group of students wore black armbands
to school in a symbolic protest against the Vietnam War. The
armbands do not appear to have included any writing. If they
were considered in isolation, it would be difficult to tell that they
expressed any ideas at all, much less opposition to the Vietnam
War. It is in the context of the full controversy — from the
students’ coordinated plan to wear the armbands to the school’s
disciplinary response — that the ideas expressed by the
armbands come into view. (Id. at pp. 505–506.)
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Opinion of the Court by Liu, J.
Here, the public issue that is reasonably implicated by
defendants’ demonstration comes into view when the challenged
conduct is situated within its broader context. This context
includes the identity of the speakers or participants (25 to 30
members of a housing advocacy organization), the picket’s
location and audience (a public sidewalk outside the residence
of the CEO of a major real estate development company), and its
purpose and timing (to protest residential displacement
practices immediately after a couple had been evicted from their
long-term home). Against this backdrop, the declarations
describing ACCE’s mission and the events leading up to the
picket, together with Saucedo’s declaration describing the picket
as a “protest” of the “unfair and deceptive practices used by
Wedgewood,” give rise to a reasonable inference that the
demonstration implicates controversial real estate practices
that many individuals and communities find destabilizing —
unquestionably an issue of public interest. (See Rivero, supra,
105 Cal.App.4th at p. 924 [speech concerning “a topic of
widespread . . . interest” implicates a public issue].)
We now make explicit the standard that is implicit in the
analysis above: FilmOn’s first step is satisfied so long as the
challenged speech or conduct, considered in light of its context,
may reasonably be understood to implicate a public issue, even
if it also implicates a private dispute. Only when an expressive
activity, viewed in context, cannot reasonably be understood as
implicating a public issue does an anti-SLAPP motion fail at
FilmOn’s first step.
B.
We also granted review to decide whether courts should
defer to anti-SLAPP movants in determining whether a public
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GEISER v. KUHNS
Opinion of the Court by Liu, J.
issue is implicated at FilmOn’s first step. Kuhns and the
Caamals argue that the Court of Appeal erred because it failed
to afford sufficient deference to their contentions that the picket
broadly implicated issues of foreclosure and eviction practices in
the wake of the Great Recession. Geiser responds that such
deference would empower anti-SLAPP movants to “fabricate[]”
“retroactive” characterizations of their speech or conduct. We
hold that FilmOn’s first step calls for an objective inquiry,
without deference to the movant’s framing or personal
motivations. A court evaluating an anti-SLAPP motion should
take the position of a reasonable, objective observer. (See
Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th
53, 65 [“[O]ur anti-SLAPP statute utilizes a reasonable,
objective test that lends itself to adjudication on pretrial
motion”].)
Kuhns and the Caamals insist that “a speaker is in the
best position to know the content and purpose of his speech,”
whereas Geiser worries that anti-SLAPP movants may
intentionally mischaracterize their activities. But these
concerns are misplaced. FilmOn’s first step asks what issue or
issues the challenged activity may reasonably be understood to
implicate. On that question, the movant’s beliefs, motivations,
or characterizations may be relevant and, if objectively
reasonable, will inform the analysis. But they are not
themselves dispositive and, if not objectively reasonable, will
not carry weight. If a reasonable inference can be drawn that
the challenged activity implicates a public issue, then the
analysis proceeds to FilmOn’s second step.
The Court of Appeal’s parsing of the Caamals’ declarations
reflects a related confusion. The court reasoned that because
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GEISER v. KUHNS
Opinion of the Court by Liu, J.
the declarations indicated that the Caamals were moved to
action by a desire to repurchase their home, the sidewalk
demonstration implicated only their “purely personal” interest
in facilitating a repurchase of the property. But those who speak
on public issues are often driven to do so by circumstances that
affect them personally. A woman who has suffered workplace
harassment might be moved to speak out about her own
experiences. The fact that she foregrounds harms she herself
has experienced does not mean an objective observer could not
reasonably understand her story, in context, to implicate
societal issues of workplace harassment. Similarly here,
although the protest in front of Geiser’s home stemmed from the
Caamals’ personal interest in regaining their property, this does
not mean that an objective observer could not reasonably
understand the protest, in context, to implicate public issues of
unfair foreclosure and residential displacement practices.
Again, the touchstone is objective reasonableness.
IV.
We turn now to FilmOn’s second step. As with its first-
step analysis, the Court of Appeal’s analysis at the second step
did not give appropriate weight to the context in which the
sidewalk demonstration arose. The Court of Appeal reasoned
that because the sidewalk protest was “directed at Wedgewood
and [Geiser] . . . for the purpose of coercing Wedgewood into
selling back the property,” it “did not further the public
discourse on the issues of displacement of residents due to
residential real estate business practices, gentrification, or large
scale fix-and-flip real estate practices leading to the great
recession.”
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GEISER v. KUHNS
Opinion of the Court by Liu, J.
But, as explained, the demonstration was not only about
the dispute over the Caamals’ long-term residence, but also
about broader issues concerning unfair foreclosures and
evictions. While the protest might have served the purpose of
facilitating a repurchase of the property, as the Court of Appeal
supposed, it also served to draw attention to the alleged
unfairness of the business practices by which the Caamals were
foreclosed upon and evicted. ACCE’s participation in the protest
must be understood with the latter purpose in mind. The
context makes clear that this sidewalk protest furthered public
discussion of the public issues it implicated. It is a paradigmatic
example of “conduct in furtherance of the exercise of the
constitutional right of . . . free speech in connection with a public
issue or an issue of public interest.” (§ 425.16, subd. (e)(4).)
This conclusion is bolstered by the media coverage arising
from the controversy and by the press release Wedgewood
issued in response to it. That press release accused ACCE, an
organization that fights foreclosures and displacement of long-
term residents, of “portray[ing] the Caamal family as victims,
while exploiting a very emotional issue . . . to further its own
agenda.” This language suggests that Wedgewood recognized
not only that the protest implicated public issues, but also that
the protest bore some connection to the “further[ance]” of
ACCE’s “agenda.” This is not to say that a protest must receive
media attention in order to be protected under the anti-SLAPP
statute. As we explained in FilmOn, “[w]e are not concerned
with the social utility of the speech at issue, or the degree to
which it propelled the conversation in any particular direction
. . . .” (FilmOn, supra, 7 Cal.5th at p. 151.) We simply note that
when the conduct that gives rise to a lawsuit attracts such
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GEISER v. KUHNS
Opinion of the Court by Liu, J.
media attention, it can be an indicator that such conduct was
undertaken “in connection with” a public issue. (§ 425.16,
subd. (e)(4).)
Finally, we observe that our analysis here at FilmOn’s
second step overlaps with our analysis at the first step. Many
of the same contextual considerations that compel us to conclude
that the protest implicated public issues also compel us to
conclude that the protest furthered public discussion of them.
In cases like this one, it may be more efficient to look to the
whole context from which the conduct underlying the lawsuit
arises, rather than attempting to parse which considerations
fall under which of FilmOn’s two steps.
CONCLUSION
“Speech is often provocative and challenging.”
(Terminiello v. City of Chicago (1949) 337 U.S. 1, 4.) But our
legal tradition recognizes the importance of speech and other
expressive activity even when — perhaps especially when — it
is uncomfortable or inconvenient. The Legislature enacted the
anti-SLAPP statute to safeguard that tradition against those
who would use the judicial process to chill speech they oppose.
Here, the Court of Appeal erred in holding that the
demonstration outside Geiser’s home did not constitute speech
in connection with a public issue under the anti-SLAPP statute’s
catchall provision. We reverse the judgment of the Court of
Appeal and remand this matter to that court for further
proceedings consistent with this opinion.
23
GEISER v. KUHNS
Opinion of the Court by Liu, J.
LIU, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
GUERRERO, J.
24
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion Geiser v. Kuhns
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published)
Review Granted (unpublished) XX NP opn. filed 2/28/20 – 2d Dist.
Div. 5
Rehearing Granted
__________________________________________________________
Opinion No. S262032
Date Filed: August 29, 2022
__________________________________________________________
Court: Superior
County: Los Angeles
Judge: Armen Tamzarian
__________________________________________________________
Counsel:
Dinsmore & Sandelmann, Frank Sandelmann, Brett A. Stroud and
Joshua A. Valene for Plaintiff and Appellant.
Law Office of Matthew Strugar, Matthew Strugar; Law Office of
Colleen Flynn and Colleen Flynn for Defendants and Appellants.
David Greene and Shayana Kadidal for Center for Constitutional
Rights, Electronic Frontier Foundation, American Civil Liberties
Union of Southern California, Sierra Club, Civil Liberties Defense
Center, Greenpeace, Inc., Palestine Legal, National Lawyers Guild,
Partnership for Civil Justice Fund, Mosquito Fleet, Portland Rising
Tide, Amazon Watch, Center for International Environmental Law,
the International Corporate Accountability Roundtable, the First
Amendment Project and PILnet as Amici Curiae on behalf of
Defendants and Appellants.
Davis Wright Tremaine, Thomas R. Burke, Rochelle L. Wilcox, Dan
Laidman and Abigail Zeitlin for California News Publishers
Association, the Center for Investigative Reporting, Inc., the First
Amendment Coalition, First Look Institute, Inc., Hearst Corporation,
KQED Inc., Los Angeles Times Communications LLC, Motion Picture
Association, Inc., the New York Times Company, Online News
Association, the Reporters Committee for Freedom of the Press and the
Washington Post as Amici Curiae on behalf of Defendants and
Appellants.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Frank Sandelmann
Dinsmore & Sandelmann, LLP
324 Manhattan Beach Boulevard, Suite 201
Manhattan Beach, CA 90266
(310) 905-3240
Matthew Strugar
Law Office of Matthew Strugar
3435 Wilshire Boulevard, Suite 2910
Los Angeles, CA 90010
(646) 797-1853