Collier v. Harris , 240 Cal. App. 4th 41 ( 2015 )

Filed 8/5/15; pub. & mod. order 9/1/15 (see end of opn.)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
JULIE COLLIER,
Plaintiff and Respondent, G048735
v. (Super. Ct. No. 30-2012-00609744)
PATRICK HARRIS, as Executor, etc., OPINION
Defendant and Appellant.
Appeal from an order of the Superior Court of Orange County, John C.
Gastelum, Judge. Reversed and remanded.
Sall Spencer Callas & Krueger, Robert K. Sall and Michael A. Sall for
Defendant and Appellant.
Ostendorf Tate Barnett and Wayne P. Tate for Plaintiff and Respondent.
* * *
Defendant and appellant Chris Korpi1 and plaintiff and respondent Julie
Collier were active supporters of competing candidates in a local school board election.
To educate voters about the candidates he supported, Korpi registered Collier’s name and
the name of an advocacy group she formed as domain names, and then redirected all
Internet users who visited those Web sites to the Web sites for the candidates he
supported. Collier filed this action against Korpi, alleging he registered the domain
names and illegally used them to mislead the public into thinking she supported his
candidates.
Korpi moved to strike Collier’s complaint under the anti-SLAPP statute
(Code Civ. Proc., § 425.16),2 which requires a plaintiff to present evidence establishing a
probability of prevailing on the alleged claims if the defendant first shows the conduct on
which the claims are based arose from constitutionally-protected free speech or petition
activities. The trial court denied Korpi’s motion because it found he failed to show
Collier’s claims arose from free speech activities protected by the anti-SLAPP statute.
Although the court acknowledged political commentary is the quintessential form of free
speech, it concluded Korpi’s conduct in registering the domain names and redirecting
Internet traffic did not further Korpi’s free speech rights. We disagree.
To be protected by the anti-SLAPP statute, the conduct on which the
challenged claims are based does not have to constitute free speech. Rather, the conduct
need only help to advance or assist a person in the exercise of his or her free speech
rights. Registering the domain names and redirecting Internet users to the other Web
1 The caption identifies Patrick Harris as the defendant and appellant because
Korpi, who was the defendant in the trial court and the original appellant on appeal,
passed away during the pendency of this appeal. We previously granted Harris’s
application as the executor of Korpi’s estate to be substituted for Korpi as the appellant in
this matter. We refer to Korpi throughout this opinion because his conduct is at issue.
2 All statutory references are to the Code of Civil Procedure unless otherwise
stated.
2
sites assisted Korpi in exercising his free speech rights because those acts provided him
with additional forums to reach the public with information about the school board
candidates. The statute required nothing more.
Regardless whether Korpi’s conduct advanced or assisted him in exercising
his free speech rights, Collier contends the anti-SLAPP statute does not protect Korpi’s
criminal impersonation of another to deceive the public. Ordinarily, courts do not
consider the alleged impropriety of the defendant’s conduct until the second stage of the
anti-SLAPP analysis, where the court must determine whether the plaintiff presented
evidence establishing a probability of prevailing on the merits. The propriety of the
defendant’s conduct, however, may be considered in the first stage if the defendant
concedes or the evidence conclusively establishes the defendant’s conduct was criminal
as a matter of law. It is not enough that the defendant’s conduct violated a civil statute;
the defendant’s conduct must be criminal to deprive the defendant of the broad protection
the anti-SLAPP statute provides for free speech and petition activities. As explained
below, Korpi does not concede his conduct was criminal and Collier failed to offer
evidence establishing Korpi’s conduct was criminal as a matter of law.
Accordingly, the trial court erred in denying Korpi’s motion without
determining Collier presented evidence establishing a probability of prevailing on her
claims. We therefore reverse and remand for the trial court to determine whether Collier
met her burden on the second stage of the anti-SLAPP analysis. Our conclusion the
anti-SLAPP statute applies to Korpi’s conduct should not be construed as an approval of
his conduct. The authorities discussed below compel that conclusion. Nonetheless,
Korpi’s conduct still may subject him to liability if Collier can meet her burden on the
second stage of the anti-SLAPP analysis.
3
I
FACTS AND PROCEDURAL HISTORY
Korpi is an education activist involved in the politics of the Capistrano
Unified School District (District). Although he does not hold a leadership position, he
volunteers his time with Capistrano Unified Children First (Children First), a nonprofit
organization dedicated to improving the quality of education in the District. Korpi was a
vocal supporter of certain candidates during a recall election in 2010 and the regular
election in 2012 for seats on the District’s Board of Trustees (Board). The candidates
Korpi supported include Gary Pritchard and Carol McCormick.
Collier is a credentialed teacher and parent of two children who attend
school in the District. Based on her experience with the District, she formed Parents
Advocate League as a resource for parents who believe their local schools are not
meeting their children’s academic needs. Collier also was a vocal supporter of certain
candidates running for the District’s Board during the 2012 election. She and Korpi held
opposing views on education and she supported candidates attempting to unseat the
candidates Korpi supported.
Korpi thought Collier might run for a seat on the District’s Board in the
upcoming November 2012 election.3 Accordingly, in June 2012, he registered the
domain names www.juliecollier.com and www.parentsadvocateleague.com.4 He
intended to use the domain names to create Web sites that would discuss Collier’s
3 Collier contends Korpi knew she would not run for a seat on the District’s
Board because the seat for the area in the District where Collier lived was not up for
election in 2012.
4 Korpi also registered the names of Dawn Urbanek and Bill Perkins as
domain names. Like Collier, Urbanek was active in District politics and supported
candidates for the District’s Board that shared her beliefs. Perkins was a candidate for
one of the available seats on the District’s Board in the 2012 election.
4
qualifications, her relationship with Parents Advocate League, and why he believed
voters should not elect Collier. Korpi registered the domain names with GoDaddy.com
through an existing, private account he had with Domains by Proxy, LLC. Consequently,
Korpi’s identity as the registrant was not publicly available. Collier’s attorney
discovered Korpi was the registrant after writing directly to Domains by Proxy and
explaining someone used one of its accounts to register Collier’s name as a domain name.
In September 2012, after learning Collier was not running for a seat on the
District’s Board, Korpi decided to use the domain names to support his candidates in the
election. Instead of creating Web sites using the domain names, Korpi used the names to
redirect Internet traffic to Pritchard’s campaign Web site and Children First’s Web site.
Whenever a person typed in or clicked on a link to the domain names
www.juliecollier.com or www.parentsadvocateleague.com, the person was instantly
redirected to Pritchard’s campaign Web site or Children First’s Web site. Korpi did so to
increase the number of hits for these latter Web sites, and to ensure people conducting
searches using Collier’s name or Parents Advocate League’s name would be directed to
Web sites containing information about the candidates Korpi supported.
Collier first learned about the domain names and redirection to the other
Web sites in mid-October 2012. She promptly hired an attorney to discover who was
using the domain names in this manner and to stop the person from doing so. Also in
mid-October, a local news reporter contacted Korpi to inquire whether he was using the
domain names and causing the redirections. Korpi terminated the redirections and
cancelled the domain name registrations after his conversation with the reporter.
In early November 2012, Collier filed this action against Korpi, alleging he
registered the domain names and used them to mislead the public into thinking Collier
supported Korpi’s candidates. The operative second amended complaint alleges causes
of action for invasion of privacy, false impersonation (Pen. Code, § 528.5), and illegal
use of a domain name (Bus. & Prof. Code, § 17525, subd. (a)). Korpi responded by filing
5
a special motion to strike each of Collier’s causes of action under the anti-SLAPP statute.
The trial court denied the motion because it concluded Collier’s claims did not arise from
First Amendment activity, and therefore the anti-SLAPP statute did not apply. According
to the court, Collier’s “Complaint is not that [Korpi] commented on anyone’s
qualifications for public office or expressed an opinion contrary to her own – it is that he
obtained domain names and used them to make it appear that his ‘commentary’ came
from [Collier]. That conduct does not arise from conduct in furtherance of the exercise of
the constitutional right of free speech.” Korpi timely appealed.
II
DISCUSSION
A. Governing Anti-SLAPP Principles
“A SLAPP suit—a strategic lawsuit against public participation—seeks to
chill or punish a party’s exercise of constitutional rights to free speech and to petition the
government for redress of grievances. [Citation.] The Legislature enacted . . .
section 425.16—known as the anti-SLAPP statute—to provide a procedural remedy to
dispose of lawsuits that are brought to chill the valid exercise of constitutional rights.”
(Rusheen v. Cohen (2006) 37 Cal. 4th 1048, 1055-1056; see Tamkin v. CBS Broadcasting,
Inc. (2011) 193 Cal. App. 4th 133, 142 (Tamkin).) Under section 425.16, “[a] cause of
action against a person arising from any act of that person in furtherance of the person’s
right of petition or free speech under the United States Constitution or the California
Constitution in connection with a public issue shall be subject to a special motion to
strike, unless the court determines that the plaintiff has established that there is a
probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).)
“To determine whether a lawsuit or cause of action should be disposed of
as a SLAPP suit, section 425.16 establishes a two-part test. Under the first part, the party
bringing the anti-SLAPP motion has the initial burden of showing that the lawsuit, or a
6
cause of action in the lawsuit, arises from an act in furtherance of the right of free speech
or petition—i.e., that it arises from a protected activity. [Citation.] Once the defendant
has met its burden, the burden shifts to the plaintiff to demonstrate a probability of
prevailing on the lawsuit or on the cause of action. [Citation.] Only a cause of action
that satisfies both parts of the anti-SLAPP statute—i.e., that arises from protected speech
or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under
the statute.” (Tamkin, supra, 193 Cal.App.4th at p. 142.)
“In assessing whether a cause of action arises from protected activity, ‘“we
disregard the labeling of the claim [citation] and instead ‘examine the principal thrust or
gravamen of a plaintiff’s cause of action . . .’ . . . . We assess the principal thrust by
identifying ‘[t]he allegedly wrongful and injury-producing conduct . . . that provides the
foundation for the claim.’ [Citation.] If the core injury-producing conduct upon which
the plaintiff’s claim is premised does not rest on protected speech or petitioning activity,
collateral or incidental allusions to protected activity will not trigger application of the
anti-SLAPP statute. [Citation.]” [Citation].’ [Citation.] ‘[T]he critical point is whether
the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s
right of petition or free speech.’” (Hunter v. CBS Broadcasting, Inc. (2013)
221 Cal. App. 4th 1510, 1520 (Hunter).)
“When evaluating whether the defendant has carried its burden under the
first prong of the anti-SLAPP statute, ‘courts must be careful to distinguish allegations of
conduct on which liability is to be based from allegations of motives for such conduct.
“[C]auses of action do not arise from motives; they arise from acts.” [Citation.]’
[Citation.] ‘“The court reviews the parties’ pleadings, declarations and other supporting
documents to determine what conduct is actually being challenged, not to determine
whether the conduct is actionable.”’” (Hunter, supra, 221 Cal.App.4th at p. 1520.)
“We review de novo the court’s order granting [or denying a]
section 425.16 special motion to strike. [Citation.] ‘We consider “the pleadings, and
7
supporting and opposing affidavits . . . upon which the liability or defense is based.”
[Citation.] However, we neither “weigh credibility [nor] compare the weight of the
evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and
evaluate the defendant’s evidence only to determine if it has defeated that submitted by
the plaintiff as a matter of law.”’” (Freeman v. Schack (2007) 154 Cal. App. 4th 719,
727.)
B. Collier’s Claims Are Based on Conduct in Furtherance of Korpi’s Constitutional
Right of Free Speech
A defendant meets his or her burden on the first step of the anti-SLAPP
analysis by demonstrating the acts underlying the plaintiff’s cause of action fall within
one of the four categories spelled out in section 425.16, subdivision (e). (City of Cotati v.
Cashman (2002) 29 Cal. 4th 69, 78; Hunter, supra, 221 Cal.App.4th at p. 1519.) These
categories define the scope of the anti-SLAPP statute by listing acts which constitute an
“‘act in furtherance of a person’s right of petition or free speech under the United States
or California Constitution in connection with a public issue.’”5 (§ 425.16, subd. (e).)
The fourth category is a “catch-all” that makes the anti-SLAPP statute
applicable to claims based on “‘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.’” (Lieberman v. KCOP Television, Inc.
5 In its entirety, section 425.16, subdivision (e) states, “As used in this
section, ‘act in furtherance of a person’s right of petition or free speech under the United
States or California Constitution in connection with a public issue’ includes: (1) any
written or oral statement or writing made before a legislative, executive, or judicial
proceeding, or any other official proceeding authorized by law, (2) any written or oral
statement or writing made in connection with an issue under consideration or review by a
legislative, executive, or judicial body, or any other official proceeding authorized by
law, (3) any written or oral statement or writing made in a place open to the public or a
public forum in connection with an issue of public interest, or (4) any other conduct in
furtherance of the exercise of the constitutional right of petition or the constitutional right
of free speech in connection with a public issue or an issue of public interest.”
8
(2003) 110 Cal. App. 4th 156, 164, italics omitted (Lieberman); see § 425.16,
subd. (e)(4).) Accordingly, this category extends the protection of the anti-SLAPP statute
beyond merely conduct that constitutes speech to “all conduct in furtherance of the
exercise of the right of free speech in connection with a public issue.” (Lieberman, at
p. 166.) In 1997, the Legislature added this category to section 425.16, along with the
directive that “this section shall be construed broadly,” to overcome earlier appellate
decisions that narrowly construed the statute’s scope. (Nygard, Inc. v. Uusi-Kerttula
(2008) 159 Cal. App. 4th 1027, 1039-1040.)
“A cause of action arises from protected activity within the meaning of
section 425.16, subdivision (e)(4) if the plaintiff’s claims are predicated on conduct that
is (1) in furtherance of the right of free speech, and (2) in connection with a public issue
or issue of public interest.” (Hunter, supra, 221 Cal.App.4th at p. 1520; Tamkin, supra,
193 Cal.App.4th at pp. 142-143.) “‘An act is in furtherance of the right of free speech if
the act helps to advance that right or assists in the exercise of that right.’” (Hunter, at
p. 1521, quoting Tamkin at p. 143; see Lieberman, supra, 110 Cal.App.4th at p. 166.)
For example, in Lieberman, the Court of Appeal concluded a television
station acted in furtherance of its free speech rights when it illegally recorded a doctor’s
conversations with two patients as part of the station’s investigation and news report on
doctors who improperly prescribe controlled substances. The Lieberman court explained,
“Reporting the news is free speech[, and doing so] usually requires the assistance of
newsgathering, which therefore can be construed as undertaken in furtherance of the
news media’s right to free speech. Because the surreptitious recordings here were in aid
of and were incorporated into a broadcast in connection [with] a public issue, we
conclude [the doctor’s] complaint fell within the scope of section 425.16.” (Lieberman,
supra, 110 Cal.App.4th at p. 166.) The appellate court nonetheless affirmed the trial
court’s decision denying the station’s special motion to strike because the doctor had
9
presented evidence establishing a probability of prevailing on his claims against the
station. (Id. at p. 170.)
Similarly, in Hunter, the Court of Appeal found the plaintiff’s age and
gender discrimination claims against a local television station were based on protected
activity because the station’s decisions to hire younger, less qualified females as weather
anchors were acts in furtherance of the station’s free speech rights. The Hunter court
explained, “Our courts have previously recognized that ‘[r]eporting the news’ [citation]
and ‘creat[ing] . . . a television show’ both qualify as ‘exercise[s] of free speech.’
[Citations.] [The station’s] selections of its . . . weather anchors, which were essentially
casting decisions regarding who was to report the news on a local television newscast,
‘helped advance or assist’ both forms of First Amendment expression. The conduct
therefore qualifies as a form of protected activity.” (Hunter, supra, 221 Cal.App.4th at
p. 1521.) Consequently, the appellate court reversed the trial court’s decision the
anti-SLAPP statute did not apply to the plaintiff’s discrimination claims. (Id. at p. 1528;
see Tamkin, supra, 193 Cal.App.4th at p. 143 [writer’s use of plaintiffs’ names in draft
script for television show qualified as protected activity under anti-SLAPP statute
because it “helped to advance or assist in the creation, casting, and broadcasting of an
episode of a popular television show”].)
“‘“[T]he constitutional guarantee [of free speech] has its fullest and most
urgent application precisely to the conduct of campaigns for political office.”’
[Citation.]” (Beilenson v. Superior Court (1996) 44 Cal. App. 4th 944, 949-950.) Indeed,
“‘[t]he right to speak on political matters is the quintessential subject of our constitutional
protections of the right of free speech. “Public discussion about the qualifications of
those who hold or who wish to hold positions of public trust presents the strongest
possible case for applications of the safeguards afforded by the First Amendment.”’”
(Vogel v. Felice (2005) 127 Cal. App. 4th 1006, 1016.) “The character and qualifications
of a candidate for public office constitutes a ‘public issue or public interest’” for purposes
10
of section 425.16. (Id. at p. 1015.) “Section 425.16 [therefore] applies to suits involving
statements made during political campaigns.” (Conroy v. Spitzer (1999) 70 Cal. App. 4th
1446, 1451.)
Here, Collier does not base her claims on the content of any statement
Korpi made or the content of any Web site to which he redirected Internet users. Rather,
the gravamen of Collier’s claims is that Korpi registered Collier’s and Parents Advocate
League’s names as domain names, and then used those domain names to redirect Internet
users seeking information about Collier or Parents Advocate League to Web sites
endorsing and discussing candidates for the District’s Board that Collier and Parents
Advocate League did not support. The foregoing cases nonetheless compel the
conclusion the acts on which Collier bases her claims constitute protected activity under
the anti-SLAPP statute because the acts assisted Korpi in the exercise of his free speech
rights. Thus, the acts do not have to constitute speech; they merely need to help advance
or assist in the exercise of free speech rights. (Lieberman, supra, 110 Cal.App.4th at
p. 166; see Hunter, supra, 221 Cal.App.4th at p. 1521; Tamkin, supra, 193 Cal.App.4th at
p. 143.)
Registering the domain names helped to advance and assist Korpi in
exercising his free speech rights because it provided him additional avenues or forums in
which to exercise those rights. To the extent redirecting Internet traffic to other Web
sites was not itself speech, it was conduct that assisted Korpi in exercising his free speech
rights because it directed the public to the information Korpi wished to convey about the
candidates in the 2012 election. Under this analysis, Korpi’s conduct is no different than
a person printing a political flyer or mailer that supports or criticizes a candidate for
political office. Distributing the flyer or mailer constitutes speech, but the act of printing
the flyer or mailer furthers that speech because the speech could not occur without the
flyer or mailer first being printed. Here, Korpi’s political speech about the candidates he,
11
Collier, and Parents Advocate League support could not have occurred without Korpi
registering the domain names and redirecting Internet traffic from those domain names.
Collier does not address whether the acts on which she bases her claims
assisted Korpi in exercising his free speech rights. Instead, Collier argues Korpi’s
conduct is not worthy of protection under section 425.16 because it constitutes criminal
impersonation of another committed to deceive the public. Collier, however, confuses
the threshold question of whether her claims are based on protected activity and the
question whether she has established a probability of prevailing on the merits.
As explained above, the first step of the anti-SLAPP analysis focuses on the
acts the plaintiff alleges as the basis for his or her claims, not the motive or purpose the
plaintiff attributes to the defendant’s acts; the first step asks whether those acts constitute
acts in furtherance of the constitutional rights of free speech or petition. (Hunter, supra,
221 Cal.App.4th at p. 1520.) “[A]ny ‘claimed illegitimacy of the defendant’s acts is an
issue which the plaintiff must raise and support in the context of the discharge of the
plaintiff’s [secondary] burden to provide a prima facie showing of the merits of the
plaintiff’s case.’ [Citation.]” (Navellier v. Sletten (2002) 29 Cal. 4th 82, 94 (Navellier);
Hunter, at pp. 1521-1522; Lieberman, supra, 110 Cal.App.4th at p. 165.)
Indeed, courts have consistently held acts a plaintiff alleges are unlawful or
illegal are nonetheless protected activity under the anti-SLAPP statute if the acts assist or
facilitate the defendant’s free speech rights. (See, e.g., Lieberman, supra,
110 Cal.App.4th at pp. 165-166 [anti-SLAPP statute applied to claims based on allegedly
illegal recording of conversations between doctor and patient]; Doe v. Gangland
Productions, Inc. (9th Cir. 2013) 730 F.3d 946, 954 [California’s anti-SLAPP statute
applied to allegedly unlawful broadcast of interview without concealing plaintiff’s
identity; “The district court incorrectly concluded that under the anti-SLAPP statute, a
lawful broadcast is in furtherance of Defendants' right of free speech, but an unlawful
broadcast is not”].)
12
The lone exception to this rule is where the defendant concedes the acts on
which the plaintiff bases his or her claims are illegal or the evidence conclusively
establishes the defendant’s conduct is illegal as a matter of law. (See, e.g., Flatley v.
Mauro (2006) 39 Cal. 4th 299, 320 (Flatley).) We examine whether this narrow
exception applies here.
C. Korpi’s Conduct Was Not Illegal as a Matter of Law
Not all speech and petition activities are constitutionally protected.
(See, e.g., U.S. v. Alvarez (2012) 567 U.S. ___, ___; [132 S. Ct. 2537, 2544] [categories
of speech First Amendment does not protect include speech intended to incite imminent
lawless action, obscenity, defamation, speech integral to criminal conduct, so-called
“‘fighting words,’” child pornography, fraud, true threats, and speech presenting some
grave and imminent threat government has power to prevent].) Consequently, “not all
speech and petition activity is protected by section 425.16.” (Flatley, supra, 39 Cal.4th at
p. 313.)
In Flatley, the Supreme Court declared acts that are illegal as a matter of
law are not protected by the anti-SLAPP statute, and a defendant who commits such acts
therefore cannot invoke the statute’s protections even though his or her acts were
otherwise speech or petition activities. (Flatley, supra, 39 Cal.4th at p. 317.) For
example, an attorney’s settlement demand letter on a client’s behalf generally is protected
as a petition activity, but when the letter constitutes criminal extortion as a matter of law
it is not protected and the attorney may not invoke the anti-SLAPP statute to strike claims
based on the letter. (Flatley, at pp. 305, 330, 333.) Similarly, although political
campaign contributions generally are protected speech activity, a defendant whose
contributions constitute illegal money laundering as a matter of law may not invoke the
anti-SLAPP statute to strike claims based on those contributions. (Paul for Council v.
Hanyecz (2001) 85 Cal. App. 4th 1356, 1367, disapproved on other grounds in Equilon
13
Enterprises v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 68, fn. 5, and cited with
approval in Flatley, at pp. 313-317.)
This exclusion from the anti-SLAPP statute’s protections may be applied
only when “the defendant concedes, or the evidence conclusively establishes, that the
assertedly protected speech or petition activity was illegal as a matter of law.” (Flatley,
supra, 39 Cal.4th at p. 320, italics added.) “‘Illegal’” in this context means the conduct
was criminal; merely violating a statute is not sufficient because the broad protection the
anti-SLAPP statute provides for constitutional rights would be significantly undermined
if all statutory violations were exempt from the statute. (Mendoza v. ADP Screening &
Selection Services, Inc. (2010) 182 Cal. App. 4th 1644, 1654 (Mendoza).) In establishing
this exclusion from the anti-SLAPP statute, the Supreme Court “emphasize[d] that the
question of whether the defendant’s underlying conduct was illegal as a matter of law is
preliminary, and unrelated to the second prong question of whether the plaintiff has
demonstrated a probability of prevailing, and [that] the showing required to establish
conduct illegal as a matter of law—either through [the] defendant’s concession or by
uncontroverted and conclusive evidence—is not the same showing as the plaintiff’s
second prong showing of probability of prevailing.” (Mendoza, at p. 1654.)
Here, Collier contends Korpi may not invoke the anti-SLAPP statute’s
protections because his conduct was illegal as a matter of law because it violated three
separate statutes. None of these statutes, however, deprive Korpi of the anti-SLAPP
statute’s protections on the facts of this case.
Collier first contends Korpi’s conduct constituted criminal impersonation of
another under Penal Code section 529.6 That statute makes it a crime for a person to
6 The statute uses the word personate rather than impersonate, but the two
words mean the same thing and the cases discussing the statute typically use the word
impersonate because it is the more common term. (Lee v. Superior Court (2000)
22 Cal. 4th 41, 43, fn. 1 (Lee); People v. Casarez (2012) 203 Cal. App. 4th 1173, 1179,
fn. 3 (Casarez).)
14
falsely impersonate another and in that assumed identity do any “act whereby, if done by
the person falsely personated, he might, in any event, become liable to any suit or
prosecution, or to pay any sum of money, or to incur any charge, forfeiture, or penalty, or
whereby any benefit might accrue to the party personating, or to any other person.” (Pen.
Code, § 529, subd. (a)(3).) A person therefore must commit two acts to violate Penal
Code section 529. He or she first must falsely impersonate another person and, while
doing so, commit an additional act that “‘is something beyond, or compounding, the
initial false personation.’” (Casarez, supra, 203 Cal.App.4th at p. 1179.)
To impersonate someone is “‘to pretend or represent oneself to be another.’
[Citations.]” (Lee, supra, 22 Cal.4th at p. 43, fn. 1; Casarez, supra, 203 Cal.App.4th at
p. 1188 [“‘To personate another person is to assume to be that person’”].) “[T]he offense
of false personation requires a deliberate effort to pass oneself off as another.” (People v.
Rathert (2000) 24 Cal. 4th 200, 208.) For example, in People v. Maurin (1888) 77 Cal.
436, the Supreme Court reversed a conviction under Penal Code section 529 because the
defendant had not represented himself to be another person when he signed a doctor’s
name to a death certificate. The Maurin court explained, “there was no evidence that he
personated Dr. De Derky, or pretended to any human being that he, the defendant, was
Dr. De Derky. He certainly made no such pretension to the undertaker . . . or to
Mrs. Hagenow, who both knew him well; and those were the only persons with whom he
came into contact about the business of the certificate. If he signed the certificate without
any authority, and fraudulently wrote De Derky’s name when he knew he had no right to
do it, he may have been guilty of forgery; but a defendant cannot be convicted of a crime
which is not charged in the information under which he is tried. To personate another
person is to assume to be that person [and there was no evidence the defendant did so].”
(Maurin, at p. 439.)
Here, there is no evidence Korpi told or otherwise represented to
GoDaddy.com, Domains by Proxy, LLC, or anyone else that he was Collier or an
15
authorized representative of Parents Advocate League when he registered the domain
names. To the contrary, the evidence shows Korpi registered the domain names with
GoDaddy.com using a private account with Domains by Proxy, LLC that was opened and
maintained in the name of Korpi Marketing Services. Collier presents no authority that
Korpi represented himself to be Collier by registering her name as a domain name.
Similarly, there is no evidence Korpi represented himself to be Collier or Parents
Advocate League by redirecting Internet traffic to the Web sites for Pritchard’s campaign
or Children First. Whenever anyone typed in or clicked on a link for
www.juliecollier.com or www.parentsadvocateleague.com, the person was immediately
redirected to Pritchard’s or Children First’s Web sites. The address bar for the person’s
Internet browser stated the person was viewing Pritchard’s or Children First’s Web site.
Nothing on those Web sites stated they belonged to Collier or represented Collier
endorsed any view espoused on those pages. Moreover, to the extent we treat the
redirection as a representation by Korpi that he was Collier, Penal Code section 529’s
additional act requirement would not be satisfied. Instead, the claimed false
impersonation and the additional act in that assumed identity would be one and the same.
(People v. Guion (2013) 213 Cal. App. 4th 1426, 1432 [the additional act must be
“separate from the false personation”].) Accordingly, there is no conclusive evidence
establishing Korpi violated Penal Code section 529 as a matter of law as the Flatley
exclusion from the anti-SLAPP statute requires.
Collier next argues Korpi’s conduct violated Penal Code section 528.5,
which makes it a crime for any person to “knowingly and without consent credibly
impersonate[] another actual person through or on an Internet Web site or by other
electronic means for purposes of harming, intimidating, threatening, or defrauding
another person . . . .” (Pen. Code, § 528.5, subd. (a), italics added.) As explained above,
however, the Flatley exception denies the anti-SLAPP statute’s protections to otherwise
protected activities only when the evidence conclusively establishes the defendant’s
16
conduct is illegal as a matter of law. (Flatley, supra, 39 Cal.4th at p. 320.) Korpi
declares he did not register the domain names and redirect Internet traffic to harm,
intimidate, threaten, or defraud anyone. Instead, he declares he engaged in this conduct
to increase awareness of the credentials of the candidates he supported. This evidence
creates a question of fact that prevents us from concluding Korpi’s conduct violated
Penal Code section 528.5 as a matter of law.
Finally, Collier contends Korpi’s conduct was illegal because it violated
Business and Professions Code section 17525, which states, “It is unlawful for a person,
with a bad faith intent to register, traffic in, or use a domain name, that is identical or
confusingly similar to the personal name of another living person or deceased
personality, without regard to the goods or services of the parties.” We, however, need
not consider whether Korpi violated this statute. As explained above, to lose the
anti-SLAPP statute’s protection a defendant’s conduct must be criminal, not merely a
civil wrong. (Mendoza, supra, 182 Cal.App.4th at p. 1654.) A defendant who violates
Business and Professions Code section 17525 is not guilty of a crime and therefore the
anti-SLAPP statute would apply even if Korpi’s conduct violated that statute.
D. We Remand for the Trial Court to Decide the Second Prong
Based on its ruling Collier’s claims did not arise from protected activity,
the trial court did not undertake the second-prong analysis to determine whether Collier
met her burden to establish a probability of prevailing on her claims. We therefore
remand for the trial court to conduct that analysis in the first instance. (Navellier, supra,
29 Cal.4th at p. 95; Tuszynska v. Cunningham (2011) 199 Cal. App. 4th 257, 271
(Tuszynska); DuPont Merck Pharmaceutical Co. v. Superior Court (2000)
78 Cal. App. 4th 562, 568 (DuPont).)
Korpi contends we should decide the question because the trial court ruled
on the parties’ evidentiary objections and therefore whether Collier established a
17
probability of prevailing is a legal question we may decide in the first instance.
According to Korpi, deciding the question now would serve the anti-SLAPP statute’s
purpose by expeditiously disposing of Collier’s allegedly unmeritorious claims.
Although we have discretion to decide the second prong because we independently
review the question whether Collier established a probability of prevailing (Schwarzburd
v. Kensington Police Protection & Community Services Dist. Bd. (2014) 225 Cal. App. 4th
1345, 1355 (Schwarzburd); Wallace v. McCubbin (2011) 196 Cal. App. 4th 1169, 1195
(Wallace)), we decline Korpi’s invitation to do so in this case.
A few appellate courts have decided the matter when a quick decision was
necessary. (See, e.g., Schwarzburd, supra, 225 Cal.App.4th at p. 1355 [appellate court
decided second prong in first instance because contract at issue was set to expire];
Wallace, supra, 196 Cal.App.4th at p. 1195 [appellate court decided second prong
because parties disagreed on how prong should be applied]; Thomas v. Quintero (2005)
126 Cal. App. 4th 635, 656; Roberts v. Los Angeles County Bar Assn. (2003)
105 Cal. App. 4th 604, 615.) The majority of appellate courts, however, have declined to
do so either because contested evidentiary issues existed or simply because it was
appropriate for the trial court to decide the issue first. (See, e.g., Navellier, supra,
29 Cal.4th at p. 95; Hunter, supra, 221 Cal.App.4th at pp. 1527-1528; Tuszynska, supra,
199 Cal.App.4th at p. 271; Cross v. Cooper (2011) 197 Cal. App. 4th 357, 391-392;
Birkner v. Lam (2007) 156 Cal. App. 4th 275, 286; Hall v. Time Warner, Inc. (2007)
153 Cal. App. 4th 1337, 1347-1348; DuPont, supra, 78 Cal.App.4th at p. 568.)
Here, Korpi has not established any reason why we should not allow the
trial court to decide the second prong in the ordinary course. The Board election
underlying the conduct at issue occurred more than two years ago, Korpi stopped
redirecting Internet traffic and abandoned the domain names after only a few weeks and
well before Collier filed this lawsuit, and there is no urgent need to determine whether
Korpi may engage in similar conduct in the future. Moreover, when we decide a matter
18
in the first instance, we deprive the parties of a layer of independent review available to
them when the matter is decided in the ordinary course. We think it best that the able and
experienced trial judge decide the matter in the first instance.
III
DISPOSITION
The order is reversed and remanded for further proceedings consistent with
this opinion. Korpi shall recover his costs on appeal.
ARONSON, J.
WE CONCUR:
MOORE, ACTING P. J.
THOMPSON, J.
19
Filed 9/1/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
JULIE COLLIER,
G048735
Plaintiff and Respondent,
(Super. Ct. No. 30-2012-00609744)
v.
ORDER MODIFYING OPINION
PATRICK HARRIS, as Executor, etc., AND CERTIFYING OPINION FOR
PUBLICATION; NO CHANGE IN
Defendant and Appellant. JUDGMENT
It is ordered that the opinion filed in the above-entitled matter on August 5,
2015, is hereby MODIFIED as follows:
1. On page 3, the first sentence of the first full paragraph, beginning
with “Regardless whether Korpi’s conduct advanced,” insert the word “of” between the
words “Regardless” and “whether” so the sentence reads:
Regardless of whether Korpi’s conduct advanced or assisted him in
exercising his free speech rights, Collier contends the anti-SLAPP statute
does not protect Korpi’s criminal impersonation of another to deceive the
public.
2. On page 3, the first sentence of the second full paragraph, beginning
with “Accordingly, the trial court erred,” insert the word “whether” between the words
“determining” and “Collier,” delete the words “Collier presented evidence establishing a
probability of prevailing,” and replace them with the words “Collier’s evidence
established the requisite probability she would prevail” so the sentence reads:
Accordingly, the trial court erred in denying Korpi’s motion without
determining whether Collier’s evidence established the requisite probability
she would prevail on her claims.
3. On page 3, the second sentence of the second full paragraph,
beginning with “We therefore reverse and remand,” delete the words “second stage of the
anti-SLAPP analysis” and replace them with the words “anti-SLAPP statute’s second
prong” so the sentence reads:
We therefore reverse and remand for the trial court to determine whether
Collier met her burden on the anti-SLAPP statute’s second prong.
4. On page 3, the third sentence of the second full paragraph, beginning
with “Our conclusion the anti-SLAPP statute applies,” insert the words “on the first
prong that” between the words “conclusion” and “the anti-SLAPP statute,” and delete the
word “an” between the words “construed as” and “approval” so the sentence reads:
Our conclusion on the first prong that the anti-SLAPP statute applies to
Korpi’s conduct should not be construed as approval of his conduct.
5. On page 3, the fifth sentence of the second full paragraph, beginning
with “Nonetheless, Korpi’s conduct still,” delete the word “Nonetheless” at the beginning
of the sentence so the sentence reads:
Korpi’s conduct still may subject him to liability if Collier can meet her
burden on the second stage of the anti-SLAPP analysis.
2
6. On page 5, the third sentence of the first full paragraph, beginning
with “Whenever a person typed,” insert quotation marks around the terms
“www.juliecollier.com” and “www.parentsadvocateleague.com” so the sentence reads:
Whenever a person typed in or clicked on a link to the domain names
“www.juliecollier.com” or “www.parentsadvocateleague.com,” the person
was instantly redirected to Pritchard’s campaign Web site or Children
First’s Web site.
7. On page 5, the fourth sentence of the first full paragraph, beginning
with “Korpi did so to increase,” replace the word “so” with the word “this,” and replace
the words “number of hits for these latter Web sites” with the words “latter’s Web site
traffic” so the sentence reads:
Korpi did this to increase the latter’s Web site traffic, and to ensure people
conducting searches using Collier’s name or Parents Advocate League’s
name would be directed to Web sites containing information about the
candidates Korpi supported.
8. On page 6, the first full sentence of the partial paragraph at the top of
the page, beginning with “The trial court denied the motion because,” delete the words
“and therefore the anti-SLAPP statute did not apply” so the sentence reads:
The trial court denied the motion because it concluded Collier’s claims did
not arise from First Amendment activity.
9. On page 9, the first full sentence of the partial paragraph at the top of
the page, beginning with “Accordingly, this category extends the protection,” replace the
words “merely conduct that constitutes speech” with the words “actual instances of free
speech” so the sentence reads:
Accordingly, this category extends the protection of the anti-SLAPP statute
beyond actual instances of free speech to “all conduct in furtherance of the
exercise of the right of free speech in connection with a public issue.”
3
10. On page 11, the first sentence of the first full paragraph, beginning
with “Here, Collier does not base her claims,” replace the words “of any Web site” with
the words “found on the Web sites” so the sentence reads:
Here, Collier does not base her claims on the content of any statement
Korpi made or the content found on the Web sites to which he redirected
Internet users.
11. On page 11, the second sentence of the first full paragraph,
beginning with “Rather, the gravamen of Collier’s claims,” delete the words “for the
District’s Board” so the sentence reads:
Rather, the gravamen of Collier’s claims is that Korpi registered Collier’s
and Parents Advocate League’s names as domain names, and then used
those domain names to redirect Internet users seeking information about
Collier or Parents Advocate League to Web sites endorsing and discussing
candidates that Collier and Parents Advocate League did not support.
12. On page 11, the third sentence of the first full paragraph, beginning
with “The foregoing cases nonetheless compel,” delete the words “the acts” between the
words “because” and “assisted,” and replace them with the words “the registration of
domain names” so the sentence reads:
The foregoing cases nonetheless compel the conclusion the acts on which
Collier bases her claims constitute protected activity under the anti-SLAPP
statute because the registration of domain names assisted Korpi in the
exercise of his free speech rights.
13. On page 11, the fourth sentence of the first full paragraph, beginning
with “Thus, the acts do not have to constitute speech,” delete the word “Thus” at the
beginning of the sentence, replace the words “do not have to” with the words “need not,”
and replace the words “assist in” with the word “facilitate” so the sentence reads:
4
The acts need not constitute speech; they merely need to help advance or
facilitate the exercise of free speech rights.
14. On page 11, the second sentence of the second full paragraph,
beginning with “To the extent redirecting Internet traffic to other Web sites,” replace the
words “wished to convey about the” with the words “sought to disseminate about” so the
sentence reads:
To the extent redirecting Internet traffic to other Web sites was not itself
speech, it was conduct that assisted Korpi in exercising his free speech
rights because it directed the public to the information Korpi sought to
disseminate about candidates in the 2012 election.
15. On page 11, the fourth sentence of the second full paragraph,
beginning with “Distributing the flyer or mailer constitutes speech,” delete the words “the
act of printing the flyer or mailer furthers that speech because,” insert the words “first
printing” between the words “occur without” and “the flyer or mailer,” and delete the
words “first being printed” at the end of the sentence so the sentence reads:
Distributing the flyer or mailer constitutes speech, but the speech could not
occur without first printing the flyer or mailer.
16. On pages 11 and 12, the sentence that starts on the bottom of page
11 and continues on the top of page 12, beginning with “Here, Korpi’s political speech
about the candidates,” insert the word “away” between the words “Internet traffic” and
“from those domain names” so the sentence reads:
Here, Korpi’s political speech about the candidates he, Collier, and Parents
Advocate League support could not have occurred without Korpi
registering the domain names and redirecting Internet traffic away from
those domain names.
5
17. On page 12, the third sentence of the first full paragraph, beginning
with “Collier, however, confuses the threshold question,” replace the word “confuses”
with the word “conflates” so the sentence reads:
Collier, however, conflates the threshold question of whether her claims are
based on protected activity and the question whether she has established a
probability of prevailing on the merits.
18. On page 13, the first sentence of the first paragraph, beginning with
“The lone exception to this rule,” replace the words “is where” with the words “occurs
when,” and delete the words “the acts on which the plaintiff bases his or her claims are
illegal” so the sentence reads:
The lone exception to this rule occurs when the defendant concedes or the
evidence conclusively establishes the defendant’s conduct is illegal as a
matter of law.
19. On page 13, inside the bracket statement following the citation to
U.S. v. Alvarez (2012) 567 U.S. __, in the second paragraph on the page, insert the word
“unprotected” between the words “categories of” and “speech,” and delete the words
“First Amendment does not protect” so the bracketed statement reads:
[categories of unprotected speech include speech intended to incite
imminent lawless action, obscenity, defamation, speech integral to criminal
conduct, so-called “‘fighting words,’” child pornography, fraud, true
threats, and speech presenting some grave and imminent threat government
has power to prevent]
20. On page 13, the first sentence of the third paragraph, beginning with
“In Flatley, the Supreme Court declared,” delete the word “acts” between the words
“declared” and “that are illegal” and replace it with the words “speech or petitioning
activities,” and delete the words “and a defendant who commits such acts therefore
6
cannot invoke the statute’s protections even though his or her acts were otherwise speech
or petition activities” so the sentence reads:
In Flatley, the Supreme Court declared speech or petitioning activities that
are illegal as a matter of law are not protected by the anti-SLAPP statute.
21. On page 14, the first sentence of the second full paragraph,
beginning with “Here, Collier contends Korpi may not invoke,” delete the words “was
illegal as a matter of law because it” and insert “and therefore was illegal as a matter of
law” at the end of the sentence so the sentence reads:
Here, Collier contends Korpi may not invoke the anti-SLAPP statute’s
protections because his conduct violated three separate statutes and
therefore was illegal as a matter of law.
22. On page 14, the second sentence of the second full paragraph,
beginning with “None of these statutes, however,” replace the words “on the facts of this
case” with the words “as a matter of law” so the sentence reads:
None of these statutes, however, deprive Korpi of the anti-SLAPP statute’s
protections as a matter of law.
23. On page 14, the first sentence of footnote 6, beginning with “The
statute uses the word personate,” replace the words “mean the same thing” with the
words “share the same meaning” so the sentence reads:
The statute uses the word personate rather than impersonate, but the two
words share the same meaning and the cases discussing the statute typically
use the word impersonate because it is the more common term.
24. On page 16, the fifth sentence of the partial paragraph at the top of
the page, beginning with “The address bar for the person’s Internet browser,” insert the
words “resulting Internet browser” between the words “The” and “address bar” at the
beginning of the sentence, and replace the words “for the person’s Internet browser stated
7
the person was viewing” with the words “informed the viewer he or she was visiting” so
the sentence reads:
The resulting Internet browser address bar informed the viewer he or she
was visiting Pritchard’s or Children First’s Web site.
25. On page 16, the sixth sentence of the partial paragraph at the top of
the page, beginning with “Nothing on those Web sites,” replace the word “represented”
with the word “claimed” so the sentence reads:
Nothing on those Web sites stated they belonged to Collier or claimed
Collier endorsed any view espoused on those pages.
26. On page 16, the final sentence of the partial paragraph at the top of
the page, beginning with “Accordingly, there is no conclusive evidence establishing
Korpi violated,” delete the words “as the Flatley exclusion from the anti-SLAPP statute
requires” at the end of the sentence so the sentence reads:
Accordingly, there is no conclusive evidence establishing Korpi violated
Penal Code section 529 as a matter of law.
27. On pages 16 and 17, the sentence that starts on the bottom of
page 16 and continues on page 17, beginning with “As explained above, however, the
Flatley exception denies,” delete the words “as a matter of law” at the end of the sentence
so the sentence reads:
As explained above, however, the Flatley exception denies the anti-SLAPP
statute’s protections to otherwise protected activities only when the
evidence conclusively establishes the defendant’s conduct is illegal.
28. On page 17, the second sentence of the partial paragraph at the top
of the page, beginning with “Instead, he declares he engaged in this conduct,” delete the
words “of the credentials” so the sentence reads:
Instead, he declares he engaged in this conduct to increase awareness of the
candidates he supported.
8
29. On page 17, the second sentence of the second full paragraph,
beginning with “We therefore remand for the trial court,” delete the words “in the first
instance” at the end of the sentence so the sentence reads:
We therefore remand for the trial court to conduct that analysis.
30. On page 19, the first full sentence at the top of the page, beginning
with “We think it best,” replace the words “the matter in the first instance” with the
words “the issue” so the sentence reads:
We think it best that the able and experienced trial judge decide the issue.
These modifications do not change the judgment.
Appellant Patrick Harris, Executor of the Estate of Chris Wayne Korpi, has
requested that our opinion be certified for publication. It appears that our opinion meets
the standards set forth in California Rules of Court, rule 8.1105(c). The request is
GRANTED.
ARONSON, J.
WE CONCUR:
MOORE, ACTING P. J.
THOMPSON, J.
9