Allen v. Bander CA2/4 ( 2015 )

Filed 11/16/15 Allen v. Bander CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR
PAUL ALLEN, B263586
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC557130)
v.
JOEL BANDER et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of Los Angeles County, Susan
Bryant-Deason, Judge. Affirmed.
Stocker & Lancaster, Michael J. Lancaster for Plaintiff and Appellant.
Law Offices of Jason D. Ahdoot, Jason D. Ahdoot for Defendant and Respondent
Joel Bander.
The Luti Law Firm, Anthony N. Luti, for Defendant and Respondent Isynerji
Global, Inc.
INTRODUCTION
This lawsuit is the latest in a protracted series of disputes among several attorneys
and media publications serving the local Filipino-American community. Appellant Paul
Allen, an attorney, filed a complaint for defamation against respondents Joel Bander and
Isynerji Global, Inc. (IGI) (collectively, respondents), among others, alleging that several
articles published by respondents in online and print versions of a local newspaper,
PinoyWatchDog.com, contained false statements about Allen and his law practice.
Respondents moved to strike the complaint under Code of Civil Procedure section
425.16, the anti-SLAPP statute.1 After the motions were filed but before they were
heard, Allen dismissed the lawsuit without prejudice, based on a settlement he had
reached with the purported owner of PinoyWatchDog.com. The trial court found that the
motions would have succeeded but for the dismissal of the case, and therefore awarded
attorneys’ fees to respondents under section 425.16. Allen appeals the fee award and the
underlying conclusion by the trial court that the anti-SLAPP motions were meritorious.
We affirm.
FACTUAL AND PROCEDURAL HISTORY
A. Background
The parties have a long and contentious history, a brief recitation of which will be
helpful to clarify the contentions on appeal.
1. Bander and PinoyWatchDog.com
Bander is a local attorney. According to Bander, he “managed a mid size law firm
and purchased advertising in the Filipino market” from 1995 to 2010, during which time
he represented “numerous Filipino-American Newspapers and publishers.” Bander
continued to practice law until mid-2013, when he was suspended for two years by the
State Bar.
1
SLAPP is an acronym for Strategic Lawsuit Against Public Participation. All
further statutory references are to the Code of Civil Procedure unless otherwise indicated.
2
Bander also founded, wrote for, and helped run PinoyWatchDog.com, which
operated as both a print newspaper and a website from October 2011 to May 2013.
PinoyWatchDog.com was targeted at the Filipino-American community.
2. Prior Disputes Between Bander and the Allen Family
One of PinoyWatchDog.com’s competitors for Filipino-American readership was
Balita Media, Inc. (Balita), a publication run by Allen’s parents, Anthony Allen and
Luchie Mendoza Allen. Similar to PinoyWatchDog.com, Balita publishes new stories
directed to the Filipino-American community, available online and in free print editions
distributed to local businesses. (Ibid.) Both sell advertising in their print and online
publications. (Ibid.)
The two publications and their leaders have a history of litigation against each
other. For example, Bander served as plaintiff’s counsel in several cases against Balita.
He was also the named plaintiff in a lawsuit against Balita and Allen’s parents, among
others, in the case captioned Bander v. Balita Media, Inc. (Los Angeles Super. Ct. No.
BC483767), alleging that Balita published articles containing false and misleading
information about Bander and his law practice. In an unpublished opinion in that case,
we noted that Bander and PinoyWatchDog.com were competitors of Balita in the
publishing field. (Bander v. Balita Media Inc. (July 16, 2013, B245031) [nonpub. opn.]
(Bander).)2
2
We grant Allen’s request to take judicial notice of our unpublished opinion in
this case, as well as the underlying complaint, pursuant to Evidence Code section 452,
subd. (d). Allen has also requested judicial notice of a number of other documents from
several of the other cases involving Bander and/or IGI. Allen has not demonstrated how
any of these documents would be relevant or helpful to resolving the matters before this
court. (See Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th
739, 748, fn. 6.) We also note that we may not take judicial notice of the truth of factual
assertions made in documents from another case, which seems to be the basis of much of
Allen’s request. (See Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1563–1569.)
Finally, Allen’s opposition papers to the anti-SLAPP motions in this matter are already
part of the record and no judicial notice is required. Thus, the remainder of Allen’s
request for judicial notice is denied.
3
Several of the prior lawsuits filed by Bander also implicate James G. Bierne, an
attorney whose law office advertises in Balita publications. In prior litigation, as well as
in the articles at issue here, Bander claims that Bierne’s law practice was actually run by
Allen’s parents, and that they ultimately substituted Allen as the figurehead and
transitioned the advertising to a law office bearing Allen’s name.
B. Complaint
Allen filed his complaint on September 9, 2014 and then a first amended
complaint on November 10, 2014 against Bander, IGI, PinoyWatchdog.com, and Tanod
Bayan, Inc. (TBI) Allen alleged that Bander was an “attorney competitor of plaintiff”
and “is or was associated in some manner with all other Defendants.” TBI allegedly was
a “Nevada Corporation . . . doing business as Pinoywatchdog.com.” IGI was both a
Nevada Corporation and a “corporation organized in the Philippines,” was doing business
as “Isynerji.com and [] PinoyWatchDog.com,” was “an alleged owner of
PinoyWatchDog.com” and “holds a registered trademark of PinoyWatchDog.com.”
Allen’s complaint alleges claims for defamation, intentional interference with
economic relationships, intentional interference with prospective economic advantage,
unfair competition, and intentional infliction of emotional distress. All of Allen’s claims
arise from a handful of articles he claims the defendants published in the print and online
versions of PinoyWatchdog.com. The original articles were published between February
2012 and May 2013, but Allen alleged that they were subsequently “republished daily.”
The articles included titles such as “Atty. Paul ‘Boy’ Allen, Fronting for Others; He Also
Faces Contempt of Court Charges,” and “Atty. Paul Allen, Heir to Beirne-Balita False
Advertising Tradition” and allegedly contain defamatory information about Allen and his
law practice. Several of the items are labeled as “parody” and are styled as
advertisements for Allen’s law office, with text mocking Allen’s age and purported lack
of experience, and text suggesting that Allen’s “mommy and daddy just turned over their
Beirne Law Office to me, or at least we are making believe that it’s my office.” Allen
attached copies of the articles at issue to his complaint.
4
C. The Anti-SLAPP Motions
1. Motions and Supporting Evidence
On January 16, 2015, IGI moved to strike Allen’s complaint pursuant to section
425.16, arguing that the statements were protected speech and that Allen’s claims failed
because they were barred by the applicable statute of limitations and because he could not
establish defamation. Bander filed his own motion to strike on January 29, 2015.
In his declaration filed in support of his motion to strike, Bander stated that he is
the founder of PinoyWatchDog.com, which “printed publications from October 2011 to
May of 2013.” He identified TBI as the “actual publisher” of PinoyWatchDog.com and
stated that he acted as “senior columnist,” was “involved in some editorial decision
making,” and “was very personally involved in the administration of the
PinoyWatchDog.com web page.” Bander stated that the “PinoyWatchDog.com web site
has been essentially dormant since May 2013, when the last print edition was issued,
except for a few additional stories that were posted.” He authored three of the allegedly
defamatory articles regarding Allen, as well as over 40 other articles written for
PinoyWatchDog.com on a wide range of topics.
Bander acknowledged that he “practiced law for 25 years in Southern California,”
but stated he practiced “civil litigation” and no bankruptcy law during the period of time
when these articles were published. Bander claimed that he stopped practicing law at the
end of June 2013.
Both Bander and IGI claimed that IGI was a Nevada corporation created to
transport paint to the Philippines and that, aside from holding a trademark for
“PinoyWatchDog.com,” it had “nothing to do with the newspaper or webpage
‘PinoyWatchDog.com.’”3 Instead, Bander stated that a separate Philippines corporation,
3
In Bander’s declaration supporting IGI’s motion to strike, Bander states that he is
the “corporate secretary” for IGI, and that IGI had “no ownership” in IGI-Philippines,
“even though the names are exactly the same.” None of the parties offers a clear
explanation regarding the precise ownership and roles of these entities. Fortunately, that
issue is largely irrelevant to our analysis here.
5
also named Isynerji Global, Inc. (IGI-Philippines), was involved with him in the
administration of the newspaper’s website. Bander also presented a declaration from
Melissa Salvador, Manila Business correspondent, who stated that IGI-Philippines “has
always administered the PinoyWatchDog.com webpage since its inception in October
2011,” and that she had “personally handled over 90% of this administration.” She also
echoed Bander’s statement that the webpage had been “essentially dormant since May
2013.”
Both Bander and Salvador claimed that it was the “firm policy of
PinoyWatchDog.com to not change articles once posted.” Pursuant to this policy, the
“digital edition of the printed newspaper would appear on the web page within the week
it was published. These newspaper editions published in digital form . . . were never
altered, added to, or changed in anyway [sic].”
2. Allen’s Opposition
Allen filed his opposition and objections to IGI’s motion on January 29, 2015.4 In
his declaration, Allen claimed that both he and Bander were licensed attorneys “whose
clientele is largely from the Filipino community.” Allen thus contended that he and
Bander were “dual competitors” as attorneys and based on Bander’s competition with
Balita as newspaper publishers.
Allen also contended that the allegedly defamatory articles continued to be
available on the PinoyWatchDog.com website, via a link titled “Blasts from the Past.”
Allen included as exhibits copies of several of the articles that appear to have been
accessed in 2014 and 2015, and noted that the website includes links to other sites such as
Facebook, Twitter, and Pinterest, allowing users to “like,” comment on, or share the
articles.
4
It does not appear that Allen filed a separate opposition to Bander’s anti-SLAPP
motion.
6
3. Settlement
The hearing on the anti-SLAPP motions was scheduled for February 11, 2015. On
February 4, 2015, Allen entered into a settlement agreement with TBI5 under which Allen
agreed to dismiss the lawsuit and TBI agreed to “remove all articles and publications on
PinoyWatchDog.com about Paul M. Allen, Paul Mendoza Allen, Luchie M. Allen and
Luchie Mendoza Allen, from October 13, 2011 through January 31, 2015, all website
links of the articles and email links to the articles, to remove and delete all of said
articles, and further agree never to republish any of the articles in any form.” The
following day, February 5, 2015, Allen filed a request to dismiss the entire complaint,
without prejudice.
4. Ruling on Attorneys’ Fees
IGI and Bander subsequently filed motions for attorney’s fees, arguing that they
were the prevailing parties under section 425.16 and therefore entitled to their fees
incurred in preparing their motions to strike. IGI requested $29,472.70 in fees and costs,
while Bander requested $37,633.63. Allen opposed.
On April 15, 2015, following a hearing, the trial court issued its ruling granting the
motions for fees by IGI and Bander. The court found that the anti-SLAPP motions were
“properly filed and would have been meritorious but for Plaintiff’s dismissal of this
action.” The court agreed that respondents were entitled to attorney’s fees incurred, but
that “the amount of fees sought by Mr. Bander and Isynerji are overstated because the
SLAPP motions of both parties are very similar,” indicating that “Defendants’ attorneys’
worked together and prepared duplicative work.” Accordingly, the court awarded the
reduced amount of $20,214.13 in fees and costs to Bander and $20,320.20 to IGI. Allen
timely appealed.
5
The settlement agreement is entered into between TBI, Al Aquino (as President
of TBI) and Rene Villaroman, on one hand, and Allen and Luchie M. Allen (Allen’s
mother) on the other hand. The agreement contains no explanation why Villaroman or
Luchie Allen are parties thereto.
7
DISCUSSION
A. Section 425.16
“A SLAPP is a civil lawsuit that is aimed at preventing citizens from exercising
their political rights or punishing those who have done so. ‘“While SLAPP suits
masquerade as ordinary lawsuits such as defamation and interference with prospective
economic advantage, they are generally meritless suits brought primarily to chill the
exercise of free speech or petition rights by the threat of severe economic sanctions
against the defendant, and not to vindicate a legally cognizable right.”’ [Citations.]”
(Simpson Strong–Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21 (Simpson).)
“In 1992, out of concern over ‘a disturbing increase’ in these types of lawsuits, the
Legislature enacted section 425.16, the anti-SLAPP statute. (§ 425.16, subd. (a).) The
statute authorized the filing of a special motion to strike to expedite the early dismissal of
these unmeritorious claims. (§ 425.16, subds.(b)(1), (f).) To encourage ‘continued
participation in matters of public significance’ and to ensure ‘that this participation
should not be chilled through abuse of the judicial process,’ the Legislature expressly
provided that the anti-SLAPP statute ‘shall be construed broadly.’ (§ 425.16, subd. (a).)”
(Simpson, supra, 49 Cal.4th at p. 21.)
Analysis of a motion to strike pursuant to section 425.16 involves a two-step
process. (Simpson, supra, 49 Cal.4th at p. 21.) “First, the defendant must make a prima
facie showing that the plaintiff’s ‘cause of action . . . aris[es] from’ an act by the
defendant ‘in furtherance of the [defendant’s] right of petition or free speech . . . in
connection with a public issue.’ (§ 425.16, subd. (b)(1).) If a defendant meets this
threshold showing, the cause of action shall be stricken unless the plaintiff can establish
‘a probability that the plaintiff will prevail on the claim.’ (Ibid.)” (Simpson, supra, 49
Cal.4th at p. 21, fn. omitted.)
B. Prevailing Party on Anti-SLAPP Motion Following Dismissal
A “prevailing defendant” on an anti-SLAPP motion “shall be entitled to recover
his or her attorney’s fees and costs.” (§425.16, subd. (c).) Although Allen dismissed his
complaint before the hearing on respondents’ motions to strike, the trial court awarded
8
attorney’s fees to respondents on the basis that they would have prevailed on their anti-
SLAPP motions but for the dismissal. Allen contends this was error.
Citing Coltrain v. Shewalter (1998) 66 Cal.App.4th 94 (Coltrain), Allen argues
that the trial court should have found that he was the prevailing party because he realized
his objectives in the litigation through his settlement with TBI, and did not need to reach
the merits of the motions to strike. In Coltrain, the court held that “where the plaintiff
voluntarily dismisses an alleged SLAPP suit while a special motion to strike is pending,
the trial court has discretion to determine whether the defendant is the prevailing party for
purposes of attorney’s fees under Code of Civil Procedure section 425.16, subdivision
(c).” (Id. at p. 107.) In making that determination, the court concluded that “the critical
issue is which party realized its objectives in the litigation,” and noted that a plaintiff
“may try to show it actually dismissed because it had substantially achieved its goals
through a settlement or other means, because the defendant was insolvent, or for other
reasons unrelated to the probability of success on the merits.” (Ibid.) Here, Allen claims
that he has made such a showing.
The majority of courts to consider this issue, however, have rejected the
suggestion in Coltrain that a court may “award attorney fees and costs pursuant to section
425.16, subdivision (c)(1) without first determining whether the defendant would have
prevailed on the special motion to strike.” (Tourgeman v. Nelson & Kennard (2014) 222
Cal.App.4th 1447, 1457; see also Pfeiffer Venice Properties v. Bernard (2002) 101
Cal.App.4th 211, 218-219; Liu v. Moore (1999) 69 Cal.App.4th 745, 752 (Liu).) In Liu,
for example, the court pointed out that “if the plaintiff in a SLAPP suit ‘substantially
achieved its goals through a settlement or other means,’ then the plaintiff succeeded in
‘chill[ing] the valid exercise of the constitutional rights of freedom of speech and petition
for the redress of grievances’ (§ 425.16, subd. (a)), since that is the purpose of a SLAPP
suit.” (Liu, supra, 69 Cal.App.4th at p. 752.) Instead, “[u]nder the terms of subdivision
(c), the critical issue is the merits of the defendant’s motion to strike. This is as it should
be. Persons who threaten the exercise of another’s constitutional rights to speak freely
and petition for the redress of grievances should be adjudicated to have done so, not
9
permitted to avoid the consequences of their actions by dismissal of the SLAPP suit when
a defendant challenges it.” (Ibid.)
We agree with the Liu court that a “defendant who is voluntarily dismissed, with
or without prejudice, after filing a section 425.16 motion to strike, is nevertheless entitled
to have the merits of such motion heard as a predicate to a determination of the
defendant’s motion for attorney’s fees and costs under subdivision (c).” (Liu, supra, 69
Cal.App.4th at p. 751; accord Pfeiffer Venice Properties v. Bernard, supra, 101
Cal.App.4th at p. 214 (anti-SLAPP defendants “were entitled to a ruling on the merits of
their SLAPP motion, the result of which will necessarily determine their right to attorney
fees under section 425.16, subdivision (c)”.) As such, we turn to a review of the merits
of respondents’ motions; we disregard Allen’s claim that he substantially achieved his
goals through settlement as irrelevant to that analysis.
C. Commercial Speech Exemption
As a threshold issue, Allen contends that his complaint is exempt from the anti-
SLAPP statute under the commercial speech exemption in section 425.17, subdivision
(c). The commercial speech exemption “should be narrowly construed. [Citations.]”
(Simpson, supra, 49 Cal.4th at p. 22.) As the party seeking the benefit of the exemption,
Allen bears the burden of proving its applicability. (Id. at p. 26.) We review the
applicability of the exemption under a de novo standard (ibid.), and conclude that Allen
has failed to meet his burden.
Section 425.17(c) exempts from the anti-SLAPP law “a cause of action arising
from commercial speech when (1) the cause of action is against a person primarily
engaged in the business of selling or leasing goods or services; (2) the cause of action
arises from a statement or conduct by that person consisting of representations of fact
about . . . a business competitor’s business operations, goods, or services; (3) the
statement or conduct was made either for the purpose of obtaining approval for,
promoting, or securing sales or leases of, or commercial transactions in, the person’s
goods or services or in the course of delivering the person’s goods or services; and (4) the
10
intended audience for the statement or conduct meets the definition set forth in section
425.17(c)(2).” (Simpson, supra, 49 Cal.4th at p. 30.)
Here, the parties principally focus on the requirement that the statements were
made by respondents about “a business competitor’s business operations, goods, or
services.” (§ 425.17, subd. (c)(1).) Allen contends that he and Bander are competitors
based on evidence that: (1) they are both civil attorneys who draw clients from the local
Filipino-American community; and (2) Bander admitted (and the court found in Bander)
that he and PinoyWatchDog.com were competitors of Balita as publishers, both of whom
were in the business of selling advertising, for the purposes of this statute. (Bander,
supra (July 16, 2013, B245031).) First, although Allen claims that he and Bander were
competing attorneys, he provides no evidence to establish that they practiced the same
type of law at the time the articles were published, or otherwise engaged in competition
for the same type of client. For example, in his declaration, Bander states that to his
knowledge, Allen practiced bankruptcy law, and Bander had “not even been tangentially
involved in bankruptcy law since February 2010.” Allen provides no evidence to dispute
these statements—he does not claim that he practiced other types of law (other than to
say that Bander did not prove that Allen only practices bankruptcy law, a burden that is
not Bander’s to bear), nor does Allen claim that he represented newspaper publishers, as
Bander did. And Allen provides no other evidence suggesting competition between
himself and Bander as attorneys.6
Second, while Allen is correct that our prior decision in a different case concluded
that Bander and Balita were competitors as news publishers, he does not explain how that
conclusion would be relevant here. The issue before us is the relationship between
6
At oral argument, Allen also pointed to the complaint filed in the prior Bander
case as evidence that Bander had admitted to practicing bankruptcy law. In that
complaint, filed in May 2012, Bander took issue with an advertisement printed by Balita
in December 2011. Referring to his practice with his “former law firm” in late 2011,
Bander alleged that he “had formerly had his own bankruptcy practice, and was, and is,
[sic] thoroughly versed in bankruptcy law.” These allegations offer no support for
Allen’s contention that Bander was practicing bankruptcy law in 2012 or 2013.
11
Bander and Allen;7 apart from Allen’s tangential connection to Balita through his parents,
Allen does not suggest how Bander’s competition with Balita establishes that Bander
competes with Allen under the statute.8 As such, Allen has failed to establish the
application of the commercial speech exemption and we shall proceed to examine the
merits of respondents’ motions to strike.
D. Step One: Allen’s Claims Arise From a Protected Activity
As noted above, where a plaintiff voluntarily dismisses a lawsuit while an anti-
SLAPP motion is pending, the trial court must determine whether defendants would have
prevailed on the motions in order to rule on a request for attorney’s fees. We review a
trial court’s decision on the merits of an anti-SLAPP motion de novo, “engaging in the
same two-step process to determine, as a matter of law, whether the defendant made its
threshold showing the action was a SLAPP suit and whether the plaintiff established a
probability of prevailing. [Citation.]” (Marijanovic v. Gray, York & Duffy (2006) 137
Cal.App.4th 1262, 1270.
1. Alleged Activity
In the first step of a motion to strike under section 425.16, the moving party has
the burden of showing that the cause of action arises from an act in furtherance of the
right of free speech or petition—i.e., that it arises from a protected activity. (Zamos v.
Stroud (2004) 32 Cal.4th 958, 965.) Thus, the moving party must establish both (1) that
its act constituted protected activity; and (2) that the cause of action arose from that
protected activity.
As relevant here, a protected activity under the anti-SLAPP statute includes “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.” (§425.16, subd. (e)(3).) It is undisputed
7
We also note that Allen has made absolutely no showing that IGI was a
“competitor” within the meaning of the commercial speech exemption.
8
Indeed, at oral argument, Allen conceded that he was not seeking to establish that
he was a competitor with Bander based on any involvement in publishing, but rather
solely based on their work as attorneys.
12
here that Allen’s claims arose from the allegedly defamatory statements contained in
articles published by PinoyWatchDog.com. Allen does suggest, however, that
respondents did not meet their burden to show that these statements were made in a
public forum in connection with an issue of public interest.
We disagree. It is well settled that “[w]eb sites accessible to the public . . . are
‘public forums’ for purposes of the anti-SLAPP statute.” (Barrett v. Rosenthal (2006) 40
Cal.4th 33, 41, fn. 4; see also, e.g., Ampex Corp. v. Cargle (2005) 128 Cal.App.4th 1569,
1576; Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc.
(2005) 129 Cal.App.4th 1228, 1247; Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 895;
ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1007.) Further, “although
‘not every Web site post involves a public issue’ [citation], consumer information that
goes beyond a particular interaction between the parties and implicates matters of public
concern that can affect many people is generally deemed to involve an issue of public
interest for purposes of the anti-SLAPP statute. [Citations.]” (Wong v. Tai Jing (2010)
189 Cal.App.4th 1354, 1366–1367.)
Here, the articles at issue contain express warnings to its readership regarding the
“ongoing pattern of deceit” by Allen as a “danger to the community.” It is clear therefore
that these articles are matters of public interest within the meaning of the anti-SLAPP
statute. (See, e.g., Carver v. Bonds (2005) 135 Cal.App.4th 328, 343–344 [newspaper
article about medical practitioner involved issue of public interest where information
would assist others in choosing doctors]; Wilbanks v. Wolk, supra, 121 Cal.App.4th at p.
898 [statements about insurance broker involved issue of public interest because they
constituted a consumer warning to others with similar problems].) We therefore
conclude that respondents have met their burden under the first prong of the anti-SLAPP
statute.9
9
At oral argument, Allen noted that he filed objections to the evidence submitted
by respondents in support of their anti-SLAPP motions, which were never ruled on by the
trial court. Indeed, Allen submitted over 30 pages of largely boilerplate objections to
virtually every line of the declarations supporting IGI’s motion. The record contains no
13
2. IGI’s Standing
Allen also suggests that because IGI has argued that it had nothing to do with the
publication of the articles at issue (a proposition he disputes), it lacks standing to pursue a
motion to strike under section 425.16. Allen’s argument lacks citation to any authority
and is therefore deemed forfeited. (See, e.g., Badie v. Bank of America (1998) 67
Cal.App.4th 779, 784-785 [holding that argument may be forfeited when appellant “fails
to raise a point, or asserts it but fails to support it with reasoned argument and citations to
authority”].)
E. Step Two: Allen Has Not Established a Probability of Prevailing, as the Statute of
Limitations Bars His Claims
Allen’s complaint arises out of articles published by PinoyWatchDog.com, both
online and in paper format, no later than May 2013. Because Allen did not file his
complaint until September 2014, respondents contend his claims are time-barred under
the one-year statute of limitations for defamation. (§ 340(c).) We agree. As a result,
Allen cannot demonstrate a probability of prevailing on his claims, as he must in the
second step of the anti-SLAPP analysis. (See Traditional Cat Ass’n, Inc. v. Gilbreath
(2004) 118 Cal.App.4th 392, 398-399 (Traditional Cat) [court may consider applicability
of statute of limitations defense in considering second step of anti-SLAPP motion].)10
ruling by the trial court on these objections. In the context of an anti-SLAPP motion,
“[w]hen the trial court does not rule on an evidentiary objection, we deem the objection
to have been overruled. [Citations.]” (Zucchet v. Galardi (2014) 229 Cal.App.4th 1466,
1480, fn. 7; see also Reid v. Google, Inc. (2010) 50 Cal.4th 512, 534.) On appeal, Allen
has not identified any evidentiary ruling that he asserts was incorrect or provided any
basis to conclude that the trial court abused its discretion in considering respondents’
evidence. Thus, his argument is forfeited. (See People ex rel. Dept. of Alcoholic
Beverage Control v. Miller Brewing Co. (2002) 104 Cal.App.4th 1189, 1200 [deeming
argument forfeited where appellant fails to “present a factual analysis and legal authority
on each point made”]; Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768
[“The appellate court is not required to search the record on its own seeking error.”].)
10
Allen argues that a “dismissal based on the statute of limitations is not a
favorable termination” and therefore that the court could not have relied on a statute of
limitations bar to award attorney’s fees to respondents as prevailing parties under the
14
Allen’s complaint is governed by the single-publication rule. “The single-
publication rule was created to address the problem that arose with the advent of mass
communication from the general rule in defamation cases that ‘each time the defamatory
statement is communicated to a third person . . . the statement is said to have been
“published,”’ giving rise to a separate cause of action. [Citation.]” (Christoff v. Nestle
USA, Inc. (2009) 47 Cal.4th 468, 477.) In California, the single-publication rule is
codified in Civil Code section 3425.3, and provides that “[n]o person shall have more
than one cause of action for damages for libel or slander or invasion of privacy or any
other tort founded upon any single publication . . . , such as any one issue of a newspaper
or book or magazine.” A cause of action that is governed by the single-publication rule
accrues “from the date of the ‘“first general distribution of the publication to the
public”’” (Shively v. Bozanich (2003) 31 Cal.4th 1230, 1245), thereby “‘spar[ing] the
courts from litigation of stale claims’” filed years after an initial publication is issued.
(Christoff v. Nestle USA, Inc., supra, 47 Cal.4th at p. 479.)
Allen contends that the single-publication rule does not apply because the
allegedly defamatory articles remained posted online and were therefore “continuously”
published. That argument has been squarely rejected, as California courts have uniformly
applied the rule to websites. (See Traditional Cat, supra, 118 Cal.App.4th at p. 399
[applying single-publication rule to “statements published on Internet Web sites” and
rejecting plaintiff’s argument “that their defamation cause of action arose continuously
while the Web site was operating”]; (Cole v. Patricia A. Meyer & Associates, APC
(2012) 206 Cal.App.4th 1095, 1121; Long v. Walt Disney Co. (2004) 116 Cal.App.4th
anti-SLAPP statute. Allen’s only cited case, Lackner v. La Croix (1979) 25 Cal.3d 747,
751, held that a dismissal based on the statute of limitations is not a favorable termination
for purposes of a subsequent malicious prosecution action. That holding has no
application to the circumstances here, where plaintiff cannot demonstrate the probability
he will prevail because his claims are barred by the statute of limitations, and the moving
defendants are therefore entitled to attorney’s fees as prevailing parties on their anti-
SLAPP motions. And Allen neither cites to, nor attempts to distinguish, the analysis in
Traditional Cat, which is squarely at odds with his argument here. (Traditional Cat,
supra, 118 Cal.App.4th at pp. 398-399.)
15
868, (2004); Roberts v. McAfee, Inc. (9th Cir. 2011) 660 F.3d 1156, 1167 [collecting
cases].) Allen’s citation to Hellar v. Bianco (1952) 111 Cal.App.2d 424, an inapplicable
case that predates the codification of the single publication rule in California (not to
mention the Internet) does not support his claim. (See Roberts v. McAfee, Inc., supra,
660 F.3d at p. 1168 (noting that Hellar does not “address[] the definition of republication;
indeed, [it does not] address[] the single-publication rule at all”).) Likewise, Allen’s
unsupported suggestions that the “length of time the Defendants keep the Articles posted
. . . determines the number of republications” and that length of time is a “question of fact
for the jury” are contrary to authority, as discussed above.
Allen further argues that the statute of limitations was reset because the articles
were “republished” less than a year before he filed his action. He does not identify any
republication in paper format, but contends that the articles were republished when they
were posted in the “Blasts from the Past” section of the PinoyWatchDog.com website. In
the context of online publication, “under California law, a statement on a website is not
republished unless the statement itself is substantively altered or added to, or the website
is directed to a new audience.” (Yeager v. Bowlin (9th Cir. 2012) 693 F.3d 1076, 1082.)
As such, courts have rejected republication claims where, for example, the challenged
posting was posted to a different section of the same website (Canatella v. Van De Kamp
(9th Cir. 2007) 486 F.3d 1128, 1135), or where website content that did not mention the
plaintiff was revised (Yeager, supra, 693 F.3d at p. 1082; Roberts, supra, 660 F.3d at
1169 [merely continuing to host a press release on a website is “inaction,” which “is not a
republication”].)
Here, although Allen vaguely alleges that the articles were altered and
republished, he provides no evidence that they were changed in any way after their
original postings in 2012 and 2013. Instead, the copies of the articles in the record all
bear the original posting dates. Moreover, respondents have offered evidence that the
articles were not altered, in keeping with the policy of PinoyWatchDog.com, and that the
website was essentially dormant after May 2013. Notably, while moving the articles to
another section of the website (such as the section linking to “Blasts from the Past”)
16
would not constitute republication, Allen does not even offer evidence that such
movement first occurred after May 2013. Although he contends that some of the articles
were “republished” in 2014 and 2015, those dates merely appear to be the date that Allen
accessed the articles on the PinoyWatchDog.com website and printed them; there is no
evidence that the content of the articles was altered on these dates. As such, the
allegations in Allen’s complaint that the articles were “altered, added to, commented
upon and directed to new and different audiences” are not sufficient to meet his burden to
present admissible evidence. (See Traditional Cat, supra, 118 Cal.App.4th at pp. 404-
405 [“In establishing the merits of their complaint in the face of a motion to strike,
plaintiffs cannot rely on allegations but must present admissible evidence which
demonstrates the viability of their claims.”].)
Allen also claims that republication occurred when comments were made on the
article’s page by members of the public, and through links to social media, including
Facebook, Twitter, and Pinterest. Allen cites to no authority supporting his argument that
allowing comments on a webpage or including links to social media constitutes
republication. This argument is therefore forfeited and we need not address it. (See
Badie v. Bank of America, supra, 67 Cal.App.4th at p. 784-85.) We also note that, even
assuming that type of activity could be considered republication, Allen failed to meet his
burden to provide any evidence of such republication after May 2013. None of the copies
of the articles provided show that they were accessed or commented on through
Facebook, Twitter, or any other means after May 2013, other than Allen’s own access for
the purposes of this case. Indeed, the only comments visible on one of the articles are
dated in 2012, and the record contains no evidence as to when any “likes” on Facebook
or other links to other sites were utilized.
Finally, Allen suggests that his other causes of action may survive even if his
defamation claim is barred by the statute of limitations. In particular, he argues that the
four-year statute of limitations for unfair competition claims should govern his remaining
claims here. This argument fails, however, because all of Allen’s causes of action are
premised on the same allegedly defamatory conduct. “Where the complaint is based on
17
an offensive statement that is defamatory, plaintiffs have not been allowed to circumvent
the statutory limitation by proceeding on a theory other than defamation. [Citation.]”
(Long v. Walt Disney Co., supra, 116 Cal.App.4th at p. 873.) California courts have held
that the wording of Civil Code section 3425.3, applying the single-publication rule to
“any” tort, means exactly that. (Strick v. Superior Court (1983) 143 Cal.App.3d 916, 924
[applying statute to determine when the statute of limitations accrues for causes of action
for libel, fraud, and deceit based on the publication of a magazine article]; see also
McGuiness v. Motor Trend Magazine (1982) 129 Cal.App.3d 59, 63 [applying statute to
cause of action for negligence]; Baugh v. CBS, Inc. (N.D.Cal. 1993) 828 F.Supp. 745,
756 [applying statute to claims including unfair competition, fraud, and infliction of
emotional distress to the extent based on the broadcast of information about plaintiff].)
Allen’s citation to Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163,
178-179 is inapposite, as that case does not address the application of the single
publication rule to defamation-based claims.
F. Attorneys’ Fees and Sanctions
The parties also complain about the amount of fees awarded. First, Allen contends
that respondents acted unconscionably by seeking over $60,000 in fees for their
duplicative work on the motions to strike. The trial court agreed that respondents were
not entitled to the full amount requested, based on the similarity of their motions, and
reduced the award by over $26,000. We find no error in that decision.
For their part, respondents contend that Allen’s appeal was frivolous and request
sanctions. On remand, respondents may recover reasonable fees for this appeal pursuant
to section 425.16, subdivision (c). (Christian Research Institute v. Alnor (2008) 165
Cal.App.4th 1315, 1320 [“Appellate challenges concerning the motion to strike are also
subject to an award of fees and costs, which are determined by the trial court after the
appeal is resolved. [Citation.]”]; see also Evans v. Unkow (1995) 38 Cal.App.4th 1490,
1499–1500 [because section 425.16, subdivision (c) authorizes an award of attorney fees
to prevailing party without limitation, appellate attorney fees are also recoverable].)
Because respondents will be awarded fees for this appeal, we deem their request for
18
sanctions against Allen for filing a frivolous appeal moot. (See L.A. Taxi Cooperative,
Inc. v. Independent Taxi Owners Association of Los Angeles (2015) 239 Cal.App.4th 918,
933.)
DISPOSITION
Affirmed. Respondents are awarded their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
WILLHITE, Acting P. J.
MANELLA, J.
19