Velie v. Hill CA2/6 ( 2021 )

Filed 8/26/21 Velie v. Hill CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
KAREN VELIE, 2d Civil No. B299267
(Super. Ct. No. 17CV-0622)
Plaintiff and Appellant, (San Luis Obispo County)
v.
ADAM HILL et al.
Defendants and Respondents.
Karen Velie appeals an order granting respondents’ special
motion to strike her complaint as a strategic lawsuit against
public participation. (Code Civ. Proc., § 425.16.)1 Respondent
Adam Hill’s2 disparaging remarks about Velie and his calls to
boycott her online news site prompted her to sue both Hill and
We cite the Code of Civil Procedure unless noted
1
otherwise.
Hill died suddenly while the appeal was pending. Justin
2
P. Karczag, lead counsel for appellant, passed away one month
later.
respondent County of San Luis Obispo. We conclude her
allegations fall squarely within the anti-SLAPP statute. Velie
also fails to establish a probability of prevailing on the merits of
her claims against either respondent. We affirm.
FACTUAL BACKGROUND
Velie is a journalist and former owner of Cal Coast News
(CCN), a website reporting on issues of public interest in San
Luis Obispo County. Hill served on the county’s Board of
Supervisors from 2008 through August of 2020. The two first
butted heads in 2012 when CCN accused Hill of impersonating a
political opponent during a phone call. Later that year CCN
reported that Hill’s girlfriend, the head of a local social services
agency, used donated gift cards for personal purchases. Hill
accused Velie of sensationalizing the incidents and using poor
journalistic standards. In turn, Velie accused Hill of pressuring
local businesses to cease advertising on CCN’s website and
convincing a local talk radio host to stop interviewing Velie on
air.
Their animosity grew over the next four years. Posts
mocking and criticizing Velie began appearing in online forums
such as Topix and Reddit. A Facebook page called “Cal Coast
Fraud” dedicated itself to discrediting CCN, with Hill frequently
the first to “like” and share links to the page’s posts. Members of
these groups mocked Velie and baited her with comments about
her mental health and family troubles. Velie suspected Hill and
his “left-leaning” political allies orchestrated the attacks in
retaliation for reporting on the supervisor’s purported misdeeds.
She also suspected Hill used his influence to place her three
grandchildren into foster care and to restrict her access to county
records. Hill denied the claims. He chided Velie in private
emails for “ax-grinding vindictiveness” and told her to seek
mental health services.
2
PROCEDURAL BACKGROUND
Velie filed a claim under the California Tort Claims Act
against the County for “loss of income, damage to reputation and
severe emotional distress” caused by Hill’s alleged acts. (Gov.
Code, § 910 et seq.) The court rejected her claim. She then filed
a federal civil rights action against both Hill and the County
under 42 U.S.C. section 1983. Her complaint also included five
state law causes of action: (1) intentional interference with
prospective economic relations; (2) intentional interference with
contractual relations; (3) intentional infliction of emotional
distress; (4) negligent infliction of emotional distress; and (5)
violation of state civil rights under the Bane Act.3 The County’s
liability is vicarious, premised entirely on Hill’s acting in the
course and scope of his employment.
The district court dismissed her section 1983 claim with
prejudice. It declined supplemental jurisdiction over the five
state claims and dismissed them without prejudice. Velie then
re-filed her state claims in this action. The trial court entered
judgment in respondents’ favor after granting their special
motion to strike the complaint under California’s anti-SLAPP
statute. (§ 425.16.) Velie appeals.
DISCUSSION
1. Anti-SLAPP Motions and Standard of Review
“A SLAPP suit has been described as ‘a meritless suit filed
primarily to chill the defendant’s exercise of First Amendment
rights.’” (Macias v. Hartwell (1997) 55 Cal.App.4th 669, 672.)
Such suits are subject to a special motion to strike, i.e., an anti-
SLAPP motion, if one or more causes of action “aris[e] from any
act of [a defendant] in furtherance of the [defendant’s] right of
petition or free speech . . . unless the court determines that the
3 The Bane Act is found at section 52.1 of the Civil Code.
3
plaintiff has established that there is a probability that the
plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).) The
motion is thus a two-step process. The defendant must first show
the challenged claim arises from an act in furtherance of their
right of petition or free speech in connection with a public issue.
(Olive Properties, L.P. v. Coolwaters Enterprises, Inc. (2015) 241
Cal.App.4th 1169, 1174.) If the defendant meets this threshold,
the plaintiff must then establish a probability of prevailing on the
claim. (Ibid.) We review the trial court’s anti-SLAPP ruling de
novo. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811,
820.)
2. Velie’s Causes of Action Arise from Acts
in Furtherance of Hill’s Right of Free Speech in Connection
with a Public Issue
Velie’s allegations fall primarily into three categories: (1)
Hill pressured local business owners to stop advertising on CCN;
(2) he described Velie as mentally ill in emails and online posts;
and (3) he criticized CCN as dishonest and inaccurate. We
conclude all were “written or oral statement[s] or writing[s] made
in a place open to the public or a public forum in connection with
an issue of public interest.” (§ 425.16, subd. (e).) Though
frequently ad hominem, Hill’s statements conveyed his personal
belief that Velie and her website were not trustworthy sources of
information about local politics, current events, or him. (See
Chaker v. Mateo (2012) 209 Cal.App.4th 1138 [defendant’s
accusations of illegal activities at local business were made in
public interest as a warning about plaintiff’s trustworthiness].)
Those allegations outside these categories, such as Hill’s ordering
county officials to take her grandchildren into foster care, are
ancillary to her speech-focused claims.
4
3. Velie’s Probability of Prevailing on Her Claims
Against the County
The Government Tort Claims Act requires a plaintiff to
present personal injury claims to a public entity “not later than
six months after the accrual of the cause of action.” (Gov. Code,
§ 911.2, subd. (a).) While Velie’s allegations of Hill’s misconduct
span the better part of a decade, we limit our review to purported
wrongdoing after October 14, 2015, i.e., six months before she
filed her government claim on April 14, 2016. Her causes of
action against the County accruing before the earlier date are
barred. (See Utility Audit Co., Inc. v. City of Los Angeles (2003)
112 Cal.App.4th 950, 960 [“Failure to comply with [GTCA’s]
claim presentation requirements is fatal to a later cause of
action”]; Aryeh v. Canon Business Solutions, Inc. (2013) 55
Cal.4th 1185, 1199 [“the theory of continuous accrual supports
recovery only for damages arising from those breaches falling
within the limitations period”].)
The evidence supporting the complaint’s interference
causes of action during this six-month period is limited to Café
Roma’s cancelling its advertising on CCN because of “harassment
from Hill.” Velie provides no details about CCN’s contract with
this advertiser or whether Velie herself lost money because of
Café Roma’s cancellation. In addition, Hill’s urging local
businesses to boycott CCN is a constitutionally protected activity.
(See Environmental Planning & Information Council v. Superior
Court (1984) 36 Cal.3d 188 [environmental group’s call to boycott
businesses advertising in plaintiff’s newspaper considered
protected free speech].) Velie’s first and second causes of action
thus fail to state claims against the County.
Support for the complaint’s causes of action for emotional
distress (the third and fourth) and for violation of state civil
rights (the fifth) is similarly tenuous. While admittedly crass and
5
distasteful, many of the Facebook posts about Velie are
attributed to Hill’s alleged “agents” rather than Hill himself.
Velie cites no evidence he coordinated these online attacks other
than her opinion that they “mimic” the subject matter or tone of
Hill’s prior insults. Other statements she characterizes as
evidence are either irrelevant4 or misinterpret the source
documents.5 As discussed next, those posts Hill appears to have
actually written or shared during this period are also protected
by his First Amendment right to free speech. They cannot form
the basis of the County’s vicarious liability. (Gov. Code, § 815.2,
subd. (b) [“Except as otherwise provided by statute, a public
entity is not liable for an injury resulting from an act or omission
of an employee of the public entity where the employee is
immune from liability”].)
4. Velie’s Probability of Prevailing on Her Claims
Against Hill
A two-year limitations period applies to Velie’s interference
and emotional distress claims against Hill. (§§ 335.1; 339, subd.
4 For example, Hill’s emails to radio host David Congalton
were not directed at Velie directly or indirectly. Warnings
received from Steffi Sooter that her former boyfriend, developer
Ryan Petetit, wanted to “get rid of” Velie do not describe
statements made by Hill. Velie’s account of the wife of a “close
ally” of Hill’s saying the county did not consider CCN a “real
press” is likewise attributed to a different person.
5 For example, Velie states Hill falsely accused her of
“stalking and harassing his family” in a December 17, 2017 email
to Richard Shanbrom. The email refers to Hill needing police
protection at his home because of a threat made by an
unidentified person. He blames CCN for lying and “stir[ring] up
hate” but does not accuse Velie of threatening him and his family
directly.
6
(1).) The same applies to her civil rights claim under the Bane
Act because it relies on allegations identical to those supporting
her personal injury claims. (See Gatto v. County of Sonoma
(2002) 98 Cal.App.4th 744, 760 [Bane Act cause of action based
on alleged violation of free speech sounds in tort and subject to
limitations period for personal injury actions].) As above, we
confine our review to Hill’s alleged wrongdoing during the
limitations period. This began two years prior to Velie filing her
complaint in the District Court on October 20, 2016, i.e., October
20, 2014. (See Addison v. State of California (1978) 21 Cal.3d
313, 319 [though dismissed for lack of jurisdiction, federal case
equitably tolled limitations period where “plaintiffs thereafter
promptly asserted that cause in the proper state court”].)
The claims against Hill fare no better than those against
the County. The complaint’s allegations of disparaging posts by
third parties on Reddit and CalCoastFraud are based on the
unsubstantiated theory that Hill coordinated the attacks through
a network of agents and allies.6 The same is true of more
troubling allegations about her family dog’s poisoning and the
police department’s subsequent complacency. Hill’s urging
former state senator Sam Blakeslee to stop advertising on CCN
in late 2014, like his later appeals to Café Roma, were protected
free speech. Lastly, his alleged failing to respond in good faith to
6 Velie states in a declaration that “ongoing harassment
and problems with interference with advertisers” scuttled the
potential sale of CCN after she received “an offer of between $6
million and $8 million” from two businessmen. This vague
statement is the only evidence proffered in support of the offer’s
existence and viability. She introduces no evidence suggesting
Hill “knowingly interfered with [Velie’s] expectancy” of CCN’s
sale. (Della Penna v. Toyota Motor Sales, U.S.A. (1995) 11
Cal.4th 376, 393.)
7
Velie’s requests under the Public Records Act in January of 2015
should have been addressed using that law’s enforcement
provisions. (See Gov. Code, § 6258 [“Any person may institute
proceedings for injunctive or declarative relief or writ of mandate
in any court of competent jurisdiction to enforce his or her right
to inspect or to receive a copy of any public record or class of
public records under this chapter”].)
5. Velie’s Challenges to the Trial Court’s
Evidentiary Rulings
Velie argues the trial court erred when it sustained
evidentiary objections she might have overcome by the time of
trial. (See Sweetwater Union High School Dist. v. Gilbane
Building Co. (2019) 6 Cal.5th 931, 949 [“To strike a complaint for
failure to meet evidentiary obstacles that may be overcome at
trial would not serve the SLAPP Act’s protective purposes”].) The
point is moot because the excluded evidence, even if admitted,
would not have affected our conclusions.
DISPOSITION
The judgment is affirmed. Respondents shall recover their
costs on appeal.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J. YEGAN, J.
8
Ginger E. Garrett, Judge
Superior Court County of San Luis Obispo
______________________________
Encore Law Group, Justin P. Karczag, Muhammed T.
Hussain, and Patty Chen, for Plaintiff and Appellant.
Strumwasser & Woocher, Frederic D. Woocher and Dale K.
Larson, for Defendant and Respondent County of San Luis
Obispo.
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