Briganti v. Chow ( 2019 )

Filed 11/22/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
CYNTHIA BRIGANTI, B289046
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. BC676243)
KEITH CHOW,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Gail Ruderman Feuer, Judge. Affirmed.
Khouri Law Firm, Michael J. Khouri & Behzad Vahidi for
Plaintiff and Respondent.
Law Offices of Jan Stanley Mason, Jan Stanley Mason for
Defendant and Appellant.
INTRODUCTION
Plaintiff and respondent Cynthia Briganti sued defendant
and appellant Keith Chow for defamation and intentional
interference with prospective economic advantage after Chow
posted a comment on Facebook stating, among other things, that
Briganti had been indicted, was a convicted criminal, and had
stolen the identities of thousands of people. In response, Chow
filed a special motion to strike the complaint under Code of Civil
Procedure section 425.161 (i.e., an anti-SLAPP motion). The trial
court granted the motion in part, striking the intentional
interference with prospective economic advantage claim but not
the defamation claim.
On appeal, Chow contends the trial court erred by denying
the portion of his anti-SLAPP motion directed to the defamation
claim. We apply well-established law to reject Chow’s contention
and affirm the trial court’s order. We publish to draw attention to
our concluding note on civility, sexism, and persuasive brief
writing.
FACTUAL AND PROCEDURAL BACKGROUND
In her complaint, Briganti describes herself as a
motivational speaker for an international water distributor. The
distributor, Enagic, Inc. dba Kangen Water, sells water-
ionization devices. Briganti says she speaks to large audiences
about the water distributor to help sell its products. She also
alleges she was the executive producer of a movie, “Slamma
Jamma,” released in theaters in 2017.
1 All further statutory references are to the Code of Civil
Procedure unless otherwise indicated.
2
Briganti has several mutual Facebook friends with Chow.
In January 2017, Chow posted this comment on the Facebook
timeline of one of their mutual friends: “CYNTHIA CABUNGCAL
BRIGANTI the crooked Filipina Convicted CRIMINAL aka
Queen of the SCAM artists stole thousands of innocent victims
[sic] identities by parading in sheep [sic] dressing as an angel.
But now the whole world knows after her indictment by the U.S.
courts that she is nothing but Lucifer the Devil enriching herself
at the expense of innocent victims by her multi-level marketing
scams. Her latest scam was as Enagic Kangen water machine
Queen duping tens of thousands of innocent victims out of their
hard earned cash money. Good, our gracious and loving LORD
best known as Jesus aka God will always triumph over evil.
Believe in the Almighty God and he will protect and help you
from CCB the criminal.”
As noted above, Briganti sued Chow for defamation and
intentional interference with prospective economic advantage,
alleging Chow’s statements were false and malicious, that they
were seen by Enagic’s Facebook followers, and they caused
several investors to back out of her movie. She further alleges the
post caused her movie to be released on a smaller scale and make
less money than it would have otherwise.
Chow filed an anti-SLAPP motion, asking the trial court to
strike Briganti’s complaint in its entirety. He asserted Briganti’s
claims arose from protected activity and she could not provide
evidence demonstrating she would prevail on her claims. Briganti
opposed the motion, arguing her complaint does not arise from
activity protected under the anti-SLAPP statute and she had
shown a probability of success on the merits. She submitted her
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own declaration and the declaration of her business partner in
support of her opposition.
In a lengthy and detailed ruling, the trial court granted
Chow’s motion to strike Briganti’s intentional interference with
prospective economic advantage claim, but declined to strike
Briganti’s defamation claim. As noted above, Chow contends the
trial court erred by not striking Briganti’s defamation claim.
DISCUSSION
We review de novo a trial court’s decision on an anti-
SLAPP motion. (Monster Energy Co. v. Schechter (2019) 7 Cal.5th
781, 788.) The anti-SLAPP statute requires a two-step process:
“At the first step, the moving defendant bears the burden of
identifying all allegations of protected activity, and the claims for
relief supported by them. . . . If the court determines that relief is
sought based on allegations arising from activity protected by the
statute, the second step is reached. There, the burden shifts to
the plaintiff to demonstrate that each challenged claim based on
protected activity is legally sufficient and factually substantiated.
The court, without resolving evidentiary conflicts, must
determine whether the plaintiff’s showing, if accepted by the trier
of fact, would be sufficient to sustain a favorable judgment. If not,
the claim is stricken.” (Baral v. Schnitt (2016) 1 Cal.5th 376,
396.) In making these determinations the court considers “the
pleadings, and supporting and opposing affidavits stating the
facts upon which the liability or defense is based.” (§ 425.16,
subd. (b)(2).)
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A. Briganti’s Complaint Arose from Protected
Activity
The anti-SLAPP statute defines protected activities as:
“(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,
(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.” (§ 425.16, subd. (e).)
We agree with the trial court’s conclusion that the
comments upon which Briganti bases her claims implicate an
issue of public interest, and therefore qualify as a protected
activity. As the trial court explained, “Chow’s comments describe
a widespread pattern of identity theft and multi-level marketing
scams, which, he claims, have ensnared ‘tens of thousands of
innocent victims.’ [citation.] [fn. omitted] This alleged mass
criminality would be ‘of concern to a substantial number of
people.’ [citation.] This was evidently Chow’s hope for the
Facebook post, as Briganti has provided additional posts made by
Chow in the same Facebook thread in which he exhorts
commenters to warn their friends and family of Briganti’s
conduct in the hopes of building mass awareness. [citation.]”
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Briganti argues Chow “has failed to produce a single shred
of evidence to support his statement that Briganti has stolen
thousands of innocent victims’ identities.” But the inquiry at this
stage of the anti-SLAPP analysis is not whether the statements
are true, but whether the allegations in the complaint are a
matter of public interest. We conclude alleged widespread,
criminal identity theft is a matter of public interest.
B. Briganti Met Her Burden to Show a Probability of
Prevailing on Her Defamation Claim
At the second anti-SLAPP step, the plaintiff bears the
burden of demonstrating a probability of prevailing on each claim
arising from protected activity. (Baral, supra, 1 Cal.5th at
p. 384.) A plaintiff must “demonstrate that the complaint is both
legally sufficient and supported by a sufficient prima facie
showing of facts to sustain a favorable judgment if the evidence
submitted by the plaintiff is credited.” (Matson v. Dvorak (1995)
40 Cal.App.4th 539, 548.) Under the “‘summary-judgment-like
procedure’” applicable at this step, the court “does not weigh
evidence or resolve conflicting factual claims.” (Baral, supra,
1 Cal.5th at p. 384.) Chow contends Briganti cannot establish a
prima facie claim for defamation because Chow’s statements on
Facebook constituted “‘nonactionable opinion.’” We disagree.
“The elements of a defamation claim are (1) a publication
that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a
tendency to injure or causes special damage.” (Wong v. Jing
(2010) 189 Cal.App.4th 1354, 1369.) “Libel is a false and
unprivileged publication by writing, printing, picture, effigy, or
other fixed representation to the eye, which exposes any person
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to hatred, contempt, ridicule, or obloquy, or which causes him to
be shunned or avoided, or which has a tendency to injure him in
his occupation.” (Civ. Code, § 45.)
In support of her defamation claim, Briganti submitted the
following evidence: (1) the Facebook post at issue, in which Chow
states she is a convicted criminal, that she has been indicted, and
that she has stolen thousands of individuals’ identities; (2) her
declaration stating she has never been convicted of, or indicted
for, any crime, and she has not stolen thousands of innocent
victims’ identities2; (3) her declaration stating Chow’s Facebook
post inhibited her ability to raise sufficient marketing funds to
fully support the release of the movie she had produced; and (4) a
declaration of her business partner stating multiple international
investors backed out of investing in the movie because of the
damage to Briganti’s reputation from Chow’s Facebook post.
Chow argues a reasonable reader of his Facebook post
would have known the statements were mere “‘epithets, fiery
rhetoric or hyperbole’” constituting nonactionable opinions as
opposed to factual assertions. At this stage of the anti-SLAPP
analysis, however, Briganti need only establish her claim has at
least “‘minimal merit’” (Park v. Board of Trustees of California
State University (2017) 2 Cal.5th 1057, 1061.) Briganti is “not
required ‘to prove the specified claim to the trial court;’ rather, so
as to not deprive the plaintiff of a jury trial, the appropriate
inquiry is whether the plaintiff has stated and substantiated a
legally sufficient claim.” (Whitehall v. County of San Bernardino
(2017) 17 Cal.App.5th 352, 364.) She has met this burden. (See,
2 Briganti acknowledges Chow sought and obtained a civil
judgment against her for fraudulent conduct, but she was never
charged with or convicted of a crime.
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e.g. Barnes-Hind, Inc. v. Superior Court (1986) 181 Cal.App.3d
377, 385 [“Perhaps the clearest example of libel per se is an
accusation of crime.”]; ZL Technologies, Inc. v. Does 1-7 (2017)
13 Cal.App.5th 603, 625 [“‘“[N]ot every word of an allegedly
defamatory publication has to be false and defamatory to sustain
a libel action . . . . ‘The test of libel is not quantitative; a single
sentence may be the basis for an action in libel even though
buried in a much longer text . . .’”[Citation.]’]”) Thus, we agree
with the trial court’s conclusion that Briganti’s showing “is
adequate to establish a prima facie claim for defamation. The
statements complained of – that she had been indicted, that she
was a convicted criminal, and that she had stolen the identities of
thousands of people – are plainly defamatory in character and
would tend to expose their subject ‘to hatred, contempt, ridicule,
or obloquy.’ (Wong, supra, 189 Cal.App.4th at p. 1369.).”
Accordingly, Briganti has demonstrated her defamation
claim has “at least ‘minimal merit’” and therefore, should not be
stricken. (Park v. Board of Trustees of California State
University, supra, 2 Cal.5th at p. 1061.)3
3 Chow argued in the court below that his Facebook post is
privileged; thus, he asserted, Briganti must prove the statement
was made with malice. Chow failed to raise this argument on
appeal, however. We therefore treat it as abandoned. (108
Holdings, Ltd. v. City of Rohnert Park (2006) 136 Cal.App.4th
186, 193, fn. 3.)
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C. A Note on Civility, Sexism, and Persuasive Brief
Writing
Having resolved the merits of this appeal, we would be
remiss if we did not also comment on a highly inappropriate
assessment of certain personal characteristics of the trial judge,
including her appearance, in the opening paragraph of Chow’s
reply brief. We do so not to punish or embarrass, but to take
advantage of a teachable moment.
The offending paragraph states: “Briganti . . . claims
that . . . Chow defamed her by claiming she was ‘indicted’ for
criminal conduct, which is the remaining charge [in the case]
after the [trial judge] . . . an attractive, hard-working, brilliant,
young, politically well-connected judge on a fast track for the
California Supreme Court or Federal Bench, ruled for Chow
granting his anti-SLAPP Motion to Strike Respondent’s Second
Cause of Action but against Chow denying his anti-SLAPP
Motion against the First Cause of Action . . . . With due respect,
every so often, an attractive, hard-working, brilliant, young,
politically well-connected judge can err! Let’s review the errors!”
[Original capitalization preserved.]
When questioned at oral argument, Chow’s counsel stated
he intended to compliment the trial judge. Nevertheless, we
conclude the brief’s opening paragraph reflects gender bias and
disrespect for the judicial system.
As two of our judicial colleagues noted recently, “[d]espite
the record numbers of women graduating from law school and
entering the legal profession in recent decades, as well as the
increase in women judges and women in leadership positions —
not to mention the [#MeToo] movement — women in the legal
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profession continue to encounter” discrimination.4 Unfortunately,
“unequal treatment does not cease once a woman joins the
judiciary.” (Ibid.) Calling a woman judge — now an Associate
Justice of this court — “attractive,” as Chow does twice at the
outset of his reply brief, is inappropriate because it is both
irrelevant and sexist. This is true whether intended as a
compliment or not. Such comments would not likely have been
made about a male judge. (Ibid.)
As Presiding Justice Edmon and Supervising Judge
Jessner observed in their article, gender discrimination is a
subcategory of the larger scourge of incivility afflicting law
practice. (Ibid.) Objectifying or demeaning a member of the
profession, especially when based on gender, race, sexual
preference, gender identity, or other such characteristics, is
uncivil and unacceptable. Moreover, the comments in the brief
demean the serious business of this court. We review judgments
and judicial rulings, not physical or other supposed personal
characteristics of superior court judges.
The California Code of Judicial Ethics compels us to
require lawyers in proceedings before us “to refrain
from . . . manifesting, by words or conduct, bias, prejudice, or
harassment based upon race, sex, gender, gender identity, gender
expression, religion, national origin, ethnicity, disability, age,
sexual orientation, marital status, socioeconomic status, or
political affiliation . . . .” (Cal. Code Jud. Ethics, canon 3B(6)(a).)
That goes for unconscious as well as conscious bias. Moreover, as
4 (L. Edmon & S. Jessner, Gender Equality is Part of the
Civility Issue (Summer 2019) ABTL Report Los Angeles 21,
http://www.abtl.org/report/la/abtlla_summer2019.pdf [as of
October 28, 2019], archived at .)
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judicial officers, we can and should take steps to help reduce
incivility, including gender-based incivility.5 One method is by
calling gendered incivility out for what it is and insisting it not be
repeated. In a more extreme case we would be obliged to report
the offending lawyer to the California State Bar. (Martinez v.
O’Hara (2019) 32 Cal.App.5th 853, 854.)
We conclude by extending our thanks to the many talented
lawyers whose excellent briefs and scrupulous professionalism
make our work product better and our task more enjoyable. Good
brief-writing requires hard work, rigorous analysis, and careful
attention to detail. Moreover, we recognize “every brief presents
opportunities for creativity— for imaginative approaches that
will convey the point most effectively.”6 We welcome creativity
and do not require perfection. We simply did not find the peculiar
style and content of this brief’s opening paragraph appropriate,
helpful, or persuasive.
5 (See B. Currey & K. Brazille, Seven Things Judges Can Do
to Promote Civility Outside the Courtroom (Summer 2019) ABTL
Report Los Angeles 11, 12-13,
http://www.abtl.org/report/la/abtlla_summer2019.pdf [as of
October 28, 2019], archived at ,https://perma.cc/2HSM-XQZW7>.)
6 (Garner, The Winning Brief 18 (3rd ed. 2014).)
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DISPOSITION
The order is affirmed. Briganti is awarded her costs on
appeal.
CERTIFIED FOR PUBLICATION
CURREY, J.
WE CONCUR:
WILLHITE, Acting P. J.
COLLINS, J.
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