Woodhill Ventures, LLC v. Yang ( 2021 )

Filed 9/3/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
WOODHILL VENTURES, LLC, B305797
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 19BBCV00929)
v.
BEN YANG,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, John J. Kralik, Judge. Affirmed.
The Cochran Firm – California and James A. Bryant for
Defendant and Appellant.
Shumener, Odson & Oh, Robert Odson and Benjamin P.
Sosnick for Plaintiff and Respondent.
____________________
This case is about a birthday cake. Self-proclaimed
celebrity jeweler Ben “the Baller” Yang threw a birthday party
for his seven-year-old son. His wife, Nicolette Yang, ordered a
themed cake from Big Sugar Bakeshop. She sent a picture
showing her idea. But when the cake arrived, the Yangs, to their
dismay, saw it had realistic-looking pills made of fondant, an
edible icing. The Yangs thought these cake decorations looked
too much like real medications. Yang called the bakery to
complain and, dissatisfied with the bakery’s response, aired his
grievance to his 1.5 million social media followers. He also
discussed his experience on his podcast two days later. Big Sugar
began receiving death threats and negative reviews from Yang’s
followers. Big Sugar demanded Yang correct what it said were
false statements about the bakery. Yang refused. Big Sugar filed
suit alleging libel, slander, and violation of the Unfair
Competition Law. Yang responded with a special motion to
strike. The trial court denied Yang’s motion. We affirm because
Yang’s statements about a bakery order did not involve the public
interest.
I
We recount the background.
A
Nicolette Yang contacted Big Sugar to make her son’s
birthday cake. Her theme idea was a “modern Mad Science
Birthday Party.” She gave the bakery a picture of what she had
in mind. The record contains this picture. (See appendix A, post,
p. 18.)
Yang’s picture shows a knocked-over beaker atop a cake.
Spilling from the beaker are little balls or pill-like objects.
Around the base are small oval oblongs the Yangs later would
2
claim are jelly beans. On the cake’s side is a joke periodic table
element labelled “slime.” Continuing the mad science theme are
hexagons and lines suggesting a skeletal formula.
Big Sugar responded with an invoice describing each cake
component and its corresponding cost, including “Pills-
$15.” Nicolette Yang wrote, “Okay sounds great!” and asked to
change the frosting color. Big Sugar amended the invoice and re-
sent; it still included “Pills-$15.”
The parties disagree whether Nicolette Yang mentioned the
cake was for her young son during a visit to the bakery. She said
she did. The Big Sugar employee said no.
On the day of the party, Big Sugar delivered the cake to the
Yangs’ home. (See appendix B, post, p. 19.)
The Yangs were shocked the pills made of icing looked so
realistic.
What happened next again is in dispute.
Yang’s version goes like this. He called the bakery to
demand an apology and a refund. He expressed shock they put
drugs on a seven year old’s cake. The woman at the bakery
responded rudely, blamed Nicolette Yang, and claimed they
believed the cake was for a pharmacy school graduate and did not
know it was for a child’s birthday. Then the woman hung up on
Yang. Yang called back and the bakery put him on hold. He
hung up, then called back a third time to express disgust with the
cake’s appearance and the bakery’s response.
Big Sugar recounts the calls differently. According to Big
Sugar’s employees, Yang called and said they had put drugs on a
cake for a seven year old and that he had a TV show, a podcast,
and over a million followers who would destroy Big Sugar. Then
he hung up. He called back and told a second employee to “put
3
that fucking bitch on the phone,” but he hung up before the first
employee could get to the phone. Yang called a third time and
again threatened to destroy Big Sugar, mentioning his social
media followers and his podcast.
Big Sugar called the Yangs to attempt to resolve the
issue. Big Sugar also began baking a replacement cake because
the party was still a few hours away. Big Sugar employees
delivered the second cake to the Yangs.
Within minutes of Yang’s calls to Big Sugar, he began
posting about the cake on social media. His posts on Instagram
included these statements.
● “WE GONNA MAKE @BIGSUGARBAKESHOP
FEEL IT”;
● “Welp @bigsugarbakeshop you fucked up royally and
now you guys are legit canceled. And you fucked up
my sons [sic] bday cake. So I’ll make sure nobody I
know or who knows me ever does business with idiots
such as your business”;
● “Anyone in their even high mind would know that
you should NEVER EVER PUT DRUGS ON A 7 year
old kids [sic] bday cake!”
On Twitter, he posted, “This place called
@BigSugarBakeshp [sic] in studio city CA super fucked up on my
sons [sic] bday cake. Instead of jelly beans they put RX
prescription pills on my 7 year olds [sic] bday cake.” Yang posted
pictures of the sample sent to Big Sugar and the cake Big Sugar
delivered. He also posted: “If they offered it and was [sic]
apologetic about it. We would [sic] even be here bruh. Instead
they threw the blame on my wife and hung up on me and acted
like bitches.”
4
Two days later, Yang described the incident on his podcast.
Shortly after Yang’s initial social media posts, Big Sugar
began receiving calls from Yang’s followers, upset that Big Sugar
had put prescription pills on a child’s cake. Callers threatened to
“fuck up” the employees, said the employees should be killed, and
claimed to have called the police and health department about
Big Sugar’s conduct. Yang’s followers conveyed similar messages
to Big Sugar via Instagram and Twitter. Many people wrote they
would not, or would no longer, patronize Big Sugar.
Big Sugar notified Yang via Twitter of the messages and
threats it was receiving. He responded, “Man stop trying to play
the victim. . . . Damage done. Bye.” Big Sugar, through counsel,
served Yang with a demand to correct or retract what it alleged
were false statements. Yang did not correct or retract.
B
Big Sugar filed suit, alleging causes of action for libel (Civ.
Code, §§ 45 & 45a), slander (Civ. Code, § 46), and violation of the
Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.). Big
Sugar challenged nine statements from Yang’s social media posts
and podcast. We italicize the challenged statements:
1. Twitter: “This place called @BigSugarBakeshp [sic]
in studio city CA super fucked up on my sons [sic]
bday cake. Instead of jelly beans they put RX
prescription pills on my 7 year olds [sic] bday cake
[emoji]. It’s a science themed party. . . . YOU ARE
CANCELLED!!!”
2. Instagram story: “Anyone in their even high mind
would know that you should NEVER EVER PUT
DRUGS ON A 7 year old kids [sic] bday cake! Why?
Why would @bigsugarbakeshop do something so
5
stupid? Did you want the kids attending the party to
think it’s ok to take pills or maybe make them look
like candy which is even worse?”
3. Twitter: “I still can’t believe how stupid the
employees that work at that bakery are. How
fucking dumb could you be???? Where ever in life
would it be okay to put drugs on a 7 year old kids [sic]
bday cake and have them think its [sic] candy or
something? I’m baffled.”
4. Twitter: “All they had to do was say. Hey our bad.
Let us refund you for the fuck up and can we make
you a new cake? Nah they were rude, talked crazy
shit, blamed my wife and hung up on me. They only
became apologetic once they saw I had a following.
Idiots think I did this for attention [emoji].”
5. Twitter: “And then lied about saying they didn’t
know it was for a kid. I was doing damage control for
hours. Then I posted the screenshot of the emails
and details and my wife specifically telling them it’s
for my son who has major allergies. Now they quiet
smh.” (“smh” may be short for “shaking my head.”)
6. Twitter: “The first sign up email states my son is 7.
… My wife walked in 3 times. How old could he be if
she’s 34? Looks in her late 20’s. He ain’t gonna be
17+.”
7. August 26, 2019 podcast: “This was a 7 year old kid’s
party. They put prescription drugs. They put molly.
They put Percocets.”
8. August 26, 2019 podcast: “This bitch was so fucking
rude. Then she hung up on me.”
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9. August 26, 2019 podcast: “And she tells them and
enters in the order through an email. First thing she
says is, ‘This is for my 7 year old son’s birthday. . . .’ ”
In response, Yang filed a special motion to strike the
complaint under Code of Civil Procedure section 425.16 as a
strategic lawsuit against public participation. In his motion and
reply, he argued he made each of the statements identified by Big
Sugar in furtherance of his First Amendment rights. He claimed
the statements related to the public interest because they
involve: (1) candy confusion, a topic of public interest; (2) a
celebrity’s day-to-day life; and (3) a nationally recognized bakery
that had poor customer service and had designed a cake posing a
risk to children.
Big Sugar opposed the motion, arguing the statements
related only to a private dispute about a cake and Yang’s desire
to “cancel” Big Sugar.
After a hearing on the motion, the trial court denied the
motion. The court held none of the statements involved the
public interest. The court further concluded that, even if the
statements did constitute protected activity, Big Sugar had
shown a probability of prevailing on the merits.
Yang appealed.
II
Yang’s statements did not involve the “public interest” as
this statute defines it.
A
We independently review rulings on special motions to
strike. (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781,
788.)
7
Special motions to strike proceed in two steps. (Wilson v.
Cable News Network, Inc. (2019) 7 Cal.5th 871, 884.) First, we
determine whether the claims arose from protected
activity. (Ibid.) If so, we test whether the plaintiff has shown a
probability of success on each claim. (Ibid.)
We reject Yang’s motion on the first step. Yang claims his
statements constitute protected activity under subdivision (e)(3)
of section 425.16 of the Code of Civil Procedure because he made
the statements in a public forum in connection with an issue of
public interest.
Big Sugar concedes Yang made the statements in a public
forum.
Code of Civil Procedure section 425.16, subdivision (e)(3)
requires a showing the speaker made the statements in
connection with an issue of “public interest.” Evaluating what
qualifies as an issue of “public interest” inherently requires
consideration of the public/private distinction, a notoriously
malleable standard. (See Rand Resources, LLC v. City of Carson
(2019) 6 Cal.5th 610, 621 (Rand).)
We fully acknowledge the plasticity of the concept of the
“public interest.” (Cf. Horwitz, The History of the Public/Private
Distinction (1982) 130 U. Pa. L.Rev. 1423 [tracing history of
distinction from the late medieval period]; see id. at p. 1426 [“By
1940, it was a sign of legal sophistication to understand the
arbitrariness of the division of law into public and private
realms.”].)
The Legislature, however, wrote the words “public interest”
into this statute. The goal was not to pose a puzzler but to solve
a social problem. Courts have been working on this definitional
issue for years. Precedent guides our interpretation of this
8
particular statute’s use of the words “public interest.” So too does
the paramount rule that determining the statute’s purpose is the
key to statutory interpretation. (Pollock v. Tri-Modal
Distribution Services, Inc. (2021) 11 Cal.5th 918, 934.)
B
In Rand, our Supreme Court laid out three categories of
statements or conduct that qualify as “public interest”:
1. Statements or conduct that concern a person or entity
in the public eye;
2. Statements or conduct that could directly affect a
large number of persons beyond the direct
participants; and
3. Statements or conduct involving a topic of
widespread interest. (Rand, supra, 6 Cal.5th at p.
621.)
C
Yang makes three arguments on the issue of “public
interest.”
1
Yang’s first argument invokes the third Rand category. He
contends his statements involve an issue of public interest
because they were about the dangers of “candy confusion,” or
children mistakenly eating pills they believe are candy. Yang
cites a study from the American Academy of Pediatrics and a
warning from the Centers for Disease Control and Prevention
about the dangers of children confusing medication for candy.
This form of argument is common in special motions to
strike: Yang claims that, because his statements bear some
connection to an issue of public significance, his statements
deserve protection.
9
Agile thinkers always can create some kind of link between
a statement and an issue of public concern. All you need is a
fondness for abstraction and a knowledge of popular culture.
(See Dual Diagnosis Treatment Center, Inc. v. Buschel (2016) 6
Cal.App.5th 1098, 1106 [“Almost any statement, no matter how
specific, can be construed to relate to some broader topic.”].)
This pervasive potential means there must be “some degree
of closeness between the challenged statements and the asserted
public interest.” (Weinberg v. Feisel (2003) 110 Cal.App.4th 1122,
1132, italics added (Weinberg).) A tangential relationship is not
enough. (FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th
133, 140 [defendant’s statements were “too tenuously tethered to
the issues of public interest they implicate, and too remotely
connected to the public conversation about those issues, to merit
protection”].) There is “a need to go beyond the parochial
particulars of the given parties.” (Commonwealth Energy Corp. v.
Investor Data Exchange, Inc. (2003) 110 Cal.App.4th 26, 34.)
The trial court correctly identified this error of abstraction
and rightly ruled that, while “candy confusion” might be an issue
of public interest, Yang’s statements did not discuss the danger of
children confusing medications for candy. That was not Yang’s
point. Yang’s statements did not seek public discussion of
anything. They aimed to whip up a crowd for vengeful
retribution. They were an unprotected effort “ ‘to gather
ammunition’ ” in his spat with Big Sugar. (Weinberg, supra, 110
Cal.App.4th at pp. 1132–1133.)
Yang argues the trial court erred in finding he stated the
cake bore actual prescription pills instead of replicas. This point
is immaterial; Yang’s statements were not about a topic of public
interest.
10
2
Yang’s second argument invokes the first of the Rand
categories. Yang asserts both he and Big Sugar are in the public
eye: Yang, because he is a celebrity with 1.5 million social media
followers, and Big Sugar, because it has achieved “national
notoriety.”
We do not explore whether Yang is a celebrity because the
argument is fundamentally unsound. Yang incorrectly suggests
his celebrity status means everything he says is of public
interest. This is not so. (Bernstein v. LaBeouf (2019) 43
Cal.App.5th 15, 23–26 [celebrity status alone insufficient to
render anything the person says subject to protection]
(Bernstein).) Even people of great renown are capable of
banalities, as are we all.
Nor can Yang rely on the fact he published his statements
to many people. (Bernstein, supra, 43 Cal.App.5th at p. 24 [a
private dispute cannot be made into a matter of public interest
through wide communication to the public].) Shouting makes the
volume loud. It does not make the content worthy. (See, e.g.,
Abuemeira v. Stephens (2016) 246 Cal.App.4th 1291, 1295, 1298.)
Yang cites a case on which the Supreme Court has
granted review: Serova v. Sony Music Entertainment (2020) 44
Cal.App.5th 103, review granted April 22, 2020, S260736. In
Serova, fans of the late singer Michael Jackson brought a class
action to attack a record company’s statements that Jackson was
the singer on posthumous songs the company released. The fans
alleged a soundalike singer was the actual performer of certain
songs, and the record company’s contrary claims were actionable.
(Id. at pp. 111–113.) However our Supreme Court ultimately
decides Serova, the issue there apparently involves questions of
11
art versus commerce. (See id. at pp. 130–131 [“No one could
reasonably dispute that knowing whether a piece of music was
composed by Johann Sebastian Bach or a picture was painted by
Leonardo Da Vinci informs the historical understanding of the
work. . . . Thus, the marketing statements at issue here are
unlike the purely factual product or service descriptions
constituting commercial speech in cases that Serova cites.”].) We
have nothing similar here.
Mere mentions in national publications do not make Big
Sugar a business in the public eye. Despite its name, Big Sugar
is a small business. It has two shops in Los Angeles. That is all.
Yang’s and Big Sugar’s supposed proximities to fame do not
turn this into a case of public interest.
3
Yang’s final argument focuses on a subset of the third Rand
category and incorporates elements of the second Rand
category. Yang contends his statements involve the public
interest because they provide consumer protection information.
Courts have recognized the growth of consumerism in the
United States and have acknowledged the importance of public
access to consumer information. (Wilbanks v. Wolk (2004) 121
Cal.App.4th 883, 898–899 (Wilbanks).) Decisions generally have
extended protection, however, only when the “consumer
information” goes beyond recounting a one-time dispute between
a buyer and a seller. (See id. at p. 900.) Yang’s quest for revenge
did not give consumers information beyond his complaints about
his one cake order. Consumers are interested in the reactions of
other consumers, but a single report is the classic small sample,
subject to the classic small sample error. Yang’s complaints
12
about the decoration of a cake are not a public interest
discussion. We explain.
a
The consumer protection cases Yang cites do not support
his case.
In Wilbanks, the defendant, Gloria Wolk, published a
website about viatical insurance that provided consumer advice
and warnings, including a warning about a particular
brokerage. Wolk was a “consumer watchdog,” not a consumer:
Wolk had never purchased anything from the plaintiff. Wolk had
studied and written books about the industry, and her website
provided consumer information about it, including about the
potential for consumer fraud. Wolk identified brokers she
believed engaged in unethical or questionable practices. The
court held her statements constituted protected speech.
(Wilbanks, supra, 121 Cal.App.4th at pp. 889–890, 898–899,
901.)
Gilbert v. Sykes (2007) 147 Cal.App.4th 13 (Gilbert)
involved largely analogous facts: a website gave consumers
information about plastic surgery. The site offered advice,
information, and a contact page where readers could share
experiences. There were tips on choosing a plastic surgeon,
references to other resources, a list of warning signs to keep in
mind, and ruminations about plastic surgery in general. True,
the site recounted the author’s bad experience with a particular
plastic surgeon, but that complaint was but an aspect of a larger
consumer-oriented presentation. (Id. at pp. 19–24.)
Carver v. Bonds (2005) 135 Cal.App.4th 328 (Carver)
concerned an in-depth news exposé, not a lone consumer gripe. A
lengthy article in the San Francisco Chronicle revealed a
13
physician was using phony celebrity associations to promote
himself. The main defendants were two reporters who wrote the
article. They quoted two athletes the plaintiff—one Dr. Andrew
Carver—publicly but falsely claimed were former and satisfied
patients. One was Barry Bonds. “Asked by The Chronicle about
Carver, Bonds said only, ‘I don’t like that man. I don’t like that
man. He’s a liar.’ ” (Id. at p. 341.) The other athlete said he did
not know Carver. Carver sued these reporters and athletes, who
responded with a special motion to strike. The court found the
news article concerned a topic of public interest and granted the
motion. The court reasoned the article warned readers not to rely
on doctors’ ostensible experience treating professional athletes
and told what it described as a cautionary tale of Carver
exaggerating that experience to market his practice. (Id. at pp.
332–333, 335, 343–344.)
In Wong v. Jing (2010) 189 Cal.App.4th 1354 (Wong), a
father posted a review on Yelp complaining about a pediatric
dentist’s use of both nitrous oxide and silver amalgam for fillings.
The review noted silver amalgam contains mercury. The court
found the review qualified for protection because it went beyond a
critical opinion of one dentist. It was part of a public discussion
on issues of public interest: the uses of nitrous oxide and silver
amalgam in the treatment of children. (Id. at pp. 1361, 1367.)
The statements in Wilbanks, Gilbert, Carver, and Wong all
included some discussions of topics in the public interest. Yang’s
postings were not a discussion of anything. They were only a
diatribe. But “an attempt to exact a personal revenge” by causing
others to ostracize the target is not a protected public interest
statement. (Wilbanks, supra, 121 Cal.App.4th at p. 900, fn. 6.)
14
Yang also cites Chaker v. Mateo (2012) 209 Cal.App.4th
1138 (Chaker). Darren Chaker and Nicole Mateo had a child
together and then became locked in contentious paternity and
child support litigation. Wendy Mateo was Nicole Mateo’s
mother and the child’s grandmother. She posted derogatory
comments about Chaker on a website called “Ripoff Report” and a
social media platform. She claimed Chaker was a deadbeat dad,
a criminal, might be on steroids or into illegal activities, and
warned potential customers against using Chaker’s forensic
business. The Chaker court wrote some of the postings “were
intended to serve as a warning to consumers about [Chaker’s]
trustworthiness.” (Id. at pp. 1141–1142, 1146.)
“Of particular significance is the fact that it appears from
the record Chaker became the subject of statements on the ‘topix’
Web site only after he posted a profile on the Web site and it
generated responses from other members of the community,
including apparently statements from Wendy. Having elected to
join the topix Web site, Chaker clearly must have recognized that
other participants in the Web site would have a legitimate
interest in knowing about his character before engaging him on
the Web site.” (Chaker, supra, 209 Cal.App.4th at pp. 1146–
1147.)
Chaker does not follow the pattern of the cases we have just
mentioned. The comments did not relate to a single transaction,
or indeed to any transactions. Rather they seemed to express
Wendy Mateo’s animosity and desire to sully Chaker’s
reputation. We are uncertain her personal animosity was of
public interest. To the extent Chaker can be read to protect any
review of a person or business, we respectfully disagree.
15
b
These cases illustrate why Yang’s statements do not qualify
for protection under the consumer protection umbrella.
Yang’s statements relate only to one transaction with Big
Sugar. He published them on his social media accounts to air his
dissatisfaction with a particular cake. His statements were not
part of a larger discussion. Courts must scrutinize the purpose of
the statements, and where that purpose is simply to gather
“ ‘ammunition for another round,’ ” it is not in the public interest.
(Weinberg, supra, 110 Cal.App.4th at pp. 1132–1133.)
To avoid the fact that Big Sugar is a small business that
does not affect a large number of people, Yang relies on the idea
in Wilbanks and Wong that courts look at whether the industry
implicated by the business practice affects a large number of
people. Yang, however, has not identified a business practice
implicating the public interest.
Yang is complaining about a cake order. He did not like
the cake and he did not like the service. Those are not issues of
public interest.
16
DISPOSITION
We affirm the judgment and award costs to the respondent.
WILEY, J.
We concur:
STRATTON, Acting P. J.
OHTA, J. *
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
17
APPENDIX A
18
APPENDIX B
19