Wineland-Thomson Adventures v. Doe-1 CA1/3 ( 2014 )

Filed 10/8/14 Wineland-Thomson Adventures v. Doe-1 CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
WINELAND-THOMSON ADVENTURES,
INC.,
Plaintiff and Respondent, A140537
v. (City & County of San Francisco
DOE 1, Super. Ct. No. CGC-13-528871)
Defendant and Appellant.
Doe 1 (Doe) appeals from the denial of its special motion to strike the complaint
of Wineland-Thomson Adventures, Inc., doing business as Thomson Safaris (Thomson)
under the so-called anti-SLAPP1 statute (Code Civ. Proc., § 425.16).2 The complaint
alleges causes of action for defamation and tortious interference with prospective
economic advantage based on Doe’s creation of a website, “Stop Thomson Safaris,”
accusing Thomson of multiple acts of criminal and unethical conduct in the management
of land in Tanzania where Thomson operates tours and safaris. In denying the motion, the
trial court held that although Doe had “made a prima facie showing that the alleged
conduct arises from protected activity,” Thomson “produced sufficient evidence to
demonstrate a probability of prevailing” in the action. We agree with the trial court’s
evaluation of the evidence submitted in opposition to the motion and shall affirm.
1
“SLAPP” is an acronym for Strategic Lawsuits Against Public Participation.
2
All statutory references are to the Code of Civil Procedure unless otherwise noted.
1
Background
The complaint alleges that Doe used a website named “WEEBLY” to accuse
Thomson and its principals of engaging in the beating of children and adults, illegally
confiscating property, refusing to allow local inhabitants access to water sources,
confining and starving members of the local Tanzanian community, burning homes, and
bribing police and other government officials, all of which Thomson alleges is false and
libelous on its face. 3 The complaint further alleges that these statements encourage
visitors to avoid travelling with Thomson and instead to travel with other tour companies
(that Thomson elsewhere suggests are the true party or parties behind the website), and
that the false statements were made “willfully, maliciously and deliberately attempt[ing]
to deprive [Thomson] of the ability to compete in the tour industry.” Thomson alleges
that it has been damaged by a resulting loss of reputation and of business and the need to
incur additional offsetting expenses.
The record in support of and opposition to the special motion to strike contains
several pages from the Stop Thomson Safaris website in which the allegedly false
statements are made either explicitly or implicitly. The opposition also contains several
declarations asserting the falsity of the statements and the lack of any knowledge of
specific alleged incidents by the supervisors who presumably would be aware of the facts
if true. It is unnecessary to recite in this opinion all of the charges and denials contained
in the record, but we shall set forth below sufficient specifics to dispose of the issues on
appeal. In finding that Thomson’s showing met its burden under the second prong of the
anti-SLAPP analysis, the trial court stated simply that “[t]he declarations produced by
plaintiff are circumstantial evidence showing that the statements on the website were
false.”
Doe has timely appealed from the denial of the special motion to strike.
3
Although subsequent to the filing of the special motion to strike Thomson filed an
amended complaint, the trial court properly confined its analysis to the allegations
contained in the original complaint.
2
Discussion
The parameters of a special motion to strike have been stated and re-stated many
times. We quote here from our opinion in Vivian v. Labrucherie (2013) 214 Cal.App.4th
267, 271-272: “ ‘A SLAPP suit . . . 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.’ [Citation.] ‘[U]nder . . . section 425.16,
subdivision (b)(1), a defendant may move to strike “[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 . . . in connection with a public issue . . . .” ’ [Citation.] [¶] In ruling on a motion
to strike under section 425.16, subdivision (b)(1), the court must engage in a two-step
process. ‘First, the court decides whether the defendant has made a threshold showing
that the challenged cause of action is one arising from protected activity. The moving
defendant's burden is to demonstrate that the act or acts of which the plaintiff complains
were taken “in furtherance of the [defendant’s] right of petition or free speech under the
United States or California Constitution in connection with a public issue,” as defined in
the statute. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it
then determines whether the plaintiff has demonstrated a probability of prevailing on the
claim. Under section 425.16, subdivision (b)(2), the trial court in making these
determinations considers “the pleadings, and supporting and opposing affidavits stating
the facts upon which the liability or defense is based.” ’ [Citation.] Only an action that
lacks all merit is subject to a special motion to strike. [Citation.] ‘[I]n order to establish
the requisite probability of prevailing (§ 425.16, subd. (b)(1)), the plaintiff need only
have “ ‘stated and substantiated a legally sufficient claim.’ ” [Citation.] “Put another way,
the 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.’ ” ’ [Citation.] [¶] We review the trial
court rulings on the special motion to strike de novo.”
3
Although Thomson disputes the issue, we shall assume, without deciding, as the
trial court held, that the challenged statements accusing Thomson in a public forum of
mistreating the Tanzanian Maasai in the conduct of its tour business is an issue of public
interest which is protected activity within the meaning of section 425.16—thus satisfying
the first prong of the anti-SLAPP analysis.
Doe challenges on numerous grounds the trial court’s finding that Thomson has
made a prima facie showing of its ability to prevail. None of these grounds has merit.
Doe argues that the allegations in the original complaint do not provide the
specificity necessary to meet the heightened pleading standard applicable to a defamation
claim. (E.g., Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 31.) However, while further
specificity may be required to proceed with the cause of action, the court is not precluded
from considering Thomson’s showing of its ability to provide such specificity in
connection with the second prong of the anti-SLAPP analysis. “A motion to strike under
section 425.16 is not a substitute for a motion for a demurrer or summary judgment.
[Citation.] . . . It is enough that the plaintiff demonstrates that the suit is viable, so that the
court should deny the special motion to strike and allow the case to go forward.”
(Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 905.) The pages from the website
included in the record amply demonstrate Thomson’s ability to provide the necessary
specificity of the facts on which its claims are based.
Doe’s more fundamental objection is that the website does no more than report
proceedings taking place in the courts of Tanzania and before the United Nations High
Commissioner for Human Rights, so that the challenged statements are privileged under
Civil Code section 47, subdivision (d). However, while the website does make extended
reference to these proceedings, in context the allegedly libelous statements plainly assert,
or at least imply, as matters of fact allegations that apparently have been made in those
proceedings. For example, the home page of the website, titled “Stop Thomson Safaris,”
begins with the bold face caption: “Boycott Thomson Safaris and Stop Them Land
Grabbing from the Maasai People!” The opening paragraph recites, “rather than behave
ethically they have evicted locals from the land and committed a string of abuses and
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human rights violations against poor and vulnerable indigenous population.” Then,
although referring to them as “alleged abuses undertaken by Thomson Safaris staff
against the local Maasai community,” the website bullet points the following:
“● Beatings of children and adults grazing cattle on or near the land
“● Illegal confiscation of cows grazing the land
“● Refusal to let locals access the Pololet River, traditionally the communities
vital water source. During the 2009 drought this resulted in the death of 75%
of local cattle
“● Extra-judicial detention of locals for trespass for days without food
“● Children as young as six forced to walk a 16km round trip around the land to
get to primary school and back every day
“● Burnings of local peoples bomas (homes) built on the land
“● Bribing leaders of the poorest clan to stoke divisions in the resistance to the
company and maintain control of the land
“● Bribing of local police and district officials to ensure they will intimidate the
community on Thomson’s behalf”
The webpage goes on to present a “case study” titled “Young boys beaten and
injured at Sukenya Farm by Thomson Safari guard, 30th May 2011.” The text of this
“case study” begins: “On 30th May 2011 Thomson Safari[] guards found two children
grazing cattle near the Sukenya farm. One of the guards asked them why they were
grazing cattle at the farm. The boys answered that they were not grazing at the farm but
were just grazing around the nearby mountain. The TS guard was carrying a spear, long
knife and two sticks. The guard took one of his sticks and beat the boys.” The recitation
continues by describing injuries to the two boys. Under the heading “Who we are,” the
webpage reads: “The Stop Thomson Safaris campaign is run by a group of people who
have seen firsthand the effect of Thomson’s occupation on the residents of Loliondo and
decided to raise awareness about the situation.” Another page of the website describes
other beatings and assaults by “police and Thomson Safaris security-guards.” These
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statements do not purport to describe allegations that have been made in judicial or
United Nations proceedings; they purport to present the true facts.
Doe also asserts that the challenged statements are merely non-actionable
opinions. (See Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596, 600-601;
Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 387.) But while portions
of the website contain many statements that may be no more than opinions, such as the
assertion that “Thomson continue[s] to abuse their position as a wealthy foreign investor
with disproportionate influence over local police and the District Commissioner,” other
statements, such as the descriptions of assaults by Thomson security guards, clearly do
not express opinions and purport to describe past events. A prima facie showing in
support of “any part” of a plaintiff’s claim is sufficient to defeat a special motion to
strike. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.)
Doe also contends that Thomson has failed to produce competent evidence to
establish the falsity of the statements made on the website. Doe argues that Thomson’s
evidence that several Thomson personnel deny any knowledge of facts alleged on the
website does not tend to negate those facts. However, focusing simply on the beating
allegations, numerous supervisors who presumably would be aware of those facts if true
categorically denied the truth of the allegations. For example, the declaration of Daniel
Yamat, the project manager from September 2007 to June 2011 for the owner of the
12,600 acre parcel where Thomson Safaris conducts safaris, states “there is no truth in the
allegation concerning Thomson Safaris’ alleged ‘[b]eatings of children and adults grazing
cattle on or near the land’ . . . . As to the specific alleged abuses which the website
affirmatively asserts or intimates as having taken place during my tenure, I vigorously
dispute all of them, including, without limitation, the assertion that Thomson Safaris
engaged in the ‘[b]eat[ing]’ and ‘injur[ing]’ of two boys, ages 11 and 13, for allegedly
grazing cattle on May 30, 2011 . . . .” Similarly, under the heading “Persecution and
harassment of Odupoi Ndekerei by Thomson Safaris continues,” another webpage
referred to a December 10, 2012 arrest of Odupoi Ndekerei “by Thomson guards for
‘trespassing’ and grazing cattle on the disputed land.” But the declaration of Josiah
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Severe, the project manager of the land after January 2012, states that “there is no truth to
the allegation that Thomson Safaris beats or detains any members of the local population.
. . . [¶] . . . I have never beaten or arrested any member of the local community. Nor have
I ever instructed or authorized any person to beat or detain any member of the local
population, or heard of any beatings or detentions by any Thomson Safaris or TCL staff. I
also categorically deny the various specific beatings alleged in the Website to have been
inflicted by Thomson Safaris or TCL staff during my tenure at TCL, including without
limitation the alleged ‘persecution and harassment’ of an individual by the name of
Odupoi Ndekerei on or about December 9, 2012 by ‘arrest[ing]’ him for trespassing and
‘beat[ing]’ him.” While these and several like declarations may not be conclusive, they
do constitute “circumstantial evidence . . . that the statements on the website were false,”
as the trial court held. In view of the on-site presence and responsibilities of the
declarants, their testimony is sufficient to support the reasonable inference that the
alleged beatings and harassment did not occur.
The briefing contains extended argument concerning numerous other allegedly
defamatory statements, the admissibility of evidence, and other subsidiary issues, such as
whether Thomson is a “limited purpose public figure” as to whom malice must be proved
to impose liability.4 It is unnecessary at this stage to rule on the multiplicity of additional
issues briefed by the parties. It is sufficient to conclude, for the purpose of evaluating the
denial of the special motion to strike, that Thomson has presented competent evidence of
at least one statement of fact, reasonably susceptible of a defamatory meaning, that is
false and unprivileged and which has a natural tendency to injure. (See, e.g., Ringler
Associates, Inc. v. Maryland Casualty Co. (2000) 80 Cal.App.4th 1165, 1179; Barnes-
Hind, Inc. v. Superior Court (Allergan Pharmaceuticals, Inc.) (1986) 181 Cal.App.3d
377, 383.) Based on this evidence, the trial court properly held that Thomson had carried
4
Even if, contrary to the trial court’s ruling, Thomson should be considered a limited
purpose public figure, the issue of malice can hardly be considered while Doe’s identity
remains unknown.
7
its burden under the second prong of the anti-SLAPP analysis and denied the special
motion to strike.
Disposition
The order denying the special motion to strike is affirmed.5
_________________________
Pollak, Acting P.J.
We concur:
_________________________
Siggins, J.
_________________________
Jenkins, J.
5
Doe’s motion for judicial notice is granted with respect to those items as to which the
trial court took judicial notice, and to exhibits M, N and O of Doe’s first request for
judicial notice, appearing at pages 116-125 of the joint appendix, not for the truth of the
matters asserted therein but only for the fact of their publication. The motion is denied
with respect to those items to which the trial court denied Doe’s request to take judicial
notice and with respect to exhibit I of Doe’s first request for judicial notice, appearing at
pages 61-72 of the joint appendix.
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