Jeppson v. Ley ( 2020 )

Filed 1/30/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
MICHAEL JEPPSON, B292166
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC684635)
v.
ERIC LEY et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County, Maureen Duffy-Lewis, Judge. Affirmed.
Paul Law Firm, Bryon P. Josselyn, and Joshua S. Paul for
Defendants and Appellants.
Law Offices of Barry G. Florence and Barry G. Florence;
Law Offices of Kenneth W. Ralidis and Kenneth W. Ralidis for
Plaintiff and Respondent.
____________________
This case requires us to define the “public interest” in the
internet age. The issue arises in an anti-SLAPP motion: a
special motion to strike claims under Code of Civil Procedure
section 425.16. This statute can apply if the targeted claims
arose from “protected activity,” which the statute defines to
include statements on an issue of “public interest.”
Neighbors Eric Ley and Michael Jeppson are in a feud.
Ley’s dog killed Jeppson’s cat. Aided by lawyers, Ley and
Jeppson settled for $2,000 and a written agreement with a non-
disparagement clause. But then Ley posted a hostile message on
a neighborhood blog about Jeppson, who responded by suing Eric
Ley and his wife for breach of contract, defamation, and
intentional infliction of emotional distress. The Leys filed a
special motion to strike Jeppson’s complaint under Code of Civil
Procedure section 425.16, which the court denied.
We affirm because Ley’s new round in this neighborhood
quarrel raised no issue of “public interest.” Code references are
to the Code of Civil Procedure.
I
Jeppson and the Leys are neighbors. They live a block and
a half from each other. After the Leys’ dog killed Jeppson’s cat,
the Leys paid Jeppson $2,000 as part of a mutual release and
settlement agreement. Counsel advised the parties. The
agreement contained a “Mutual Non-Disparagement” provision.
Bonnie Cates is another neighbor. After the Leys and
Jeppson settled, a court granted Cates a civil harassment
restraining order against Jeppson. Cates and her husband
Jeffrey Otto alleged Jeppson hired men to cut through their
fence, to trespass, and to trim their tree. Jeppson previously
demanded Cates and Otto cut the tree because it interfered with
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his ocean view; he had threatened action if he did not get his way.
They said Jeppson had intimidated them by screaming at them
at their house. Part of the restraining order commanded Jeppson
to dispose of guns.
Cates told Heidi Ley about her troubles with Jeppson.
Heidi Ley told Eric Ley, who “felt compelled” to warn the
community to be aware of Jeppson.
On a neighborhood website called Nextdoor.com that
allegedly reached some 951 neighbors, Eric Ley wrote a post
titled “Michael Jeppson’s Restraining Order.” Ley wrote under
the pseudonym “Ken Barrett,” as follows:
“Since this is a neighborhood blog, I feel it is important to
provide information about the case against Michael
Jeppson for trespassing and vandalism on his neighbor’s
property. Michael Jeppson of Raymond James Financial
Corporation and Jeppson Wealth Management could face
jail time for these charges. Most importantly, a restraining
order was issued on 6/27/2017, and the courts forced
Michael Jeppson to relinquish his gun arsenal due to the
danger he poses to his neighbors. If interested, you can
review the court document at lacourts.org for a one dollar
fee. The signs in Michael Jeppson’s yard pictured below
warn the neighborhood that he intends to solve disputes
with gun violence, and he has stated this intent in
countless blog posts and neighborhood fliers. Beware!”
Ley’s post attached three photos of Jeppson’s yard signs,
which forbade trespassing with images of guns and a bullet-
riddled human silhouette.
Jeppson sued the Leys for breach of contract, defamation,
and intentional infliction of emotional distress. The Leys filed a
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special motion to strike under section 425.16 in response to
Jeppson’s complaint, supported by declarations and other
evidence. Jeppson opposed the Leys’ motion. The Leys appeal
the trial court’s denial of their special motion to strike.
II
The law requires affirmance.
A
We independently review rulings on special motions to
strike. (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781,
788.)
B
Special motions to strike proceed in two steps. First the
court determines whether Jeppson’s claims arose from protected
activity. The second step is a summary-judgment-like procedure
to determine whether a plaintiff can establish a probability of
success for each claim. (Wilson v. Cable News Network, Inc.
(2019) 7 Cal.5th 871, 884 (Wilson).)
The first step, decisive of this appeal, is whether the Leys
showed Jeppson’s claims arose from “protected activity,” which
includes “any written or oral statement or writing made in a
place open to the public or a public forum in connection with an
issue of public interest . . . .” (§ 425.16, subd. (e)(3), italics added.)
Determining the “public interest” invokes the public/private
distinction, which is one of the most malleable in all the law.
(See Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610,
621 [“we have struggled with the question of what makes
something an issue of public interest”] (Rand); cf. Horwitz, The
History of the Public/Private Distinction (1977) 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
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sophistication to understand the arbitrariness of the division of
law into public and private realms”].)
We are fully aware of the plasticity of the abstract notion of
the “public interest.” But our inquiry is not abstract. The
Legislature wrote these two words, did not define them, and thus
delegated the definitional job to the judiciary. Courts have been
interpreting these statutory words for many years. The anchor of
precedent moors us.
C
The six anchoring precedents are Rand, Rivero, Weinberg,
Workman, Abuemeira, and FilmOn. (Rand, supra, 6 Cal.5th 610;
Rivero v. American Federation of State, County and Municipal
Employees, AFL–CIO (2003) 105 Cal. App. 4th 913 (Rivero);
Weinberg v. Feisel (2003) 110 Cal. App. 4th 1122 (Weinberg);
Workman v. Colichman (2019) 33 Cal.App.5th 1039 (Workman);
Abuemeira v. Stephens (2016) 246 Cal. App. 4th 1291 (Abuemeira);
FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133
(FilmOn).)
We assay these six precedents to decide this case.
1
The Rand decision from the Supreme Court commands our
first attention because it stated an authoritative general rule.
Rand involved a business dispute between stadium developer
Richard Rand and the City of Carson about a potential football
franchise for the city. (Rand, supra, 6 Cal.5th at pp. 616–619.)
Rand is significant here, not because its facts are close to
this case — they are not — but because it set forth a general
definition of “public interest.” It did so by stating three
qualifying categories of statements or conduct, as follows.
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1. The first category is when the statement or conduct
concerns a person or entity in the public eye.
2. The second category is when the case involves
conduct that could directly affect a large number of
people beyond the direct participants.
3. The third category is when the case involves a topic
of widespread public interest. (Rand, supra, 6 Cal.5th
at p. 621.)
Rand quoted this three-part definition from the 2003
Rivero case, which is the case we analyze next. (Rand, supra, 6
Cal.5th at p. 621 [citing Rivero, supra, 105 Cal.App.4th at pp.
919–924].) The Supreme Court’s citation and reliance endows
Rivero with special authority, so to Rivero we turn.
2
The 2003 Rivero decision is the historic taproot of the
guiding doctrine.
David Rivero had, for 18 years, supervised the eight
janitors at International House on the campus of the University
of California at Berkeley. Three of Rivero’s subordinates accused
him of wrongdoing. Even though an investigation could not
substantiate their accusations, Rivero still lost his job as
supervisor. Rivero sued the janitors’ union, claiming it caused
his termination by circulating disparaging documents about him.
(Rivero, supra, 105 Cal.App.4th at p. 916.)
Rivero’s claims included defamation and intentional
infliction of emotional distress. Jeppson sues on these same
grounds in this case. Also, as in this case the defense — there,
the union — filed a special motion to strike. The trial court
denied the union’s special motion to strike, ruling the union’s
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statements about Rivero raised no issue of public interest.
(Rivero, supra, 105 Cal.App.4th at p. 917.)
On appeal, the Rivero court affirmed. The opinion
surveyed case law about the “public interest” and found in each
case the challenged statements concerned either:
1. a person or entity in the public eye,
2. conduct that could directly affect a large number of people
beyond the direct participants, or
3. a topic of widespread public interest. (Rivero, supra, 105
Cal.App.4th at p. 924.)
These are the same three categories the Supreme Court
quoted in Rand. (Rand, supra, 6 Cal.5th at p. 621.)
The phrasing of test three opened it to circularity, because
defining the “public interest” as a “topic of widespread public
interest” threatens to reduce the test to a tautology. But the
Rivero decision quelled this threat with further analysis that
deflated two union efforts to abstract the case’s narrow topic into
a grander and more sweeping “public” issue.
We attend carefully to these two responses in Rivero, which
were doctrinally prescient and which affect our decision of this
case.
The union made two invalid arguments of this kind,
seeking to enlarge its complaints about the supervisor of eight
janitors into broad statements about the “public interest.”
First, the union said statements concern a public issue
when people criticize unlawful workplace activities, because
public policy favors such criticism. The Rivero court responded
that, if that argument sufficed, then nearly every workplace
dispute would qualify as a matter of public interest. But
“unlawful workplace activity below some threshold level of
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significance is not an issue of public interest, even though it
implicates a public policy.” (Rivero, supra, 105 Cal.App.4th at p.
924.) Rivero thus rejected the union’s first effort at abstraction.
Second, the union claimed the topic was of public interest
because Rivero worked at a publicly-financed institution. The
court also rejected this argument because it too “sweeps too
broadly.” Applying this argument generally, “every allegedly
inappropriate use of public funds, no matter how minor, would
constitute a matter of public interest. However, the theft of a
single pencil . . . cannot amount to a public issue.” (Rivero, supra,
105 Cal.App.4th at pp. 925–926.)
These two aspects of Rivero prefigured the Supreme Court’s
decision in FilmOn by 16 years. We return to the substance of
FilmOn as the sixth case in our list. For now, we simply observe
that, like Rand, FilmOn (and also the Wilson case) cited Rivero
approvingly, thus reinforcing Rivero’s status as especially
authoritative. (FilmOn, supra, 7 Cal.5th at pp. 149 & 150 [citing
Rivero]; Wilson, supra, 7 Cal.5th at pp. 901 & 903 [also citing
Rivero approvingly].)
In sum, the basic Rivero holding was that Rivero was a
nonentity. The only people directly involved in and affected by
the situation were Rivero and the eight custodians. Rivero’s
supervision of those eight people was “hardly a matter of public
interest.” (Rivero, supra, 105 Cal.App.4th at p. 924.)
3
Our third guiding precedent is Weinberg, which also is from
2003. Weinberg extensively cited and relied upon Rivero.
Plaintiff Weinberg and defendant Feisel were “aficionados
of token collecting.” Both belonged to the National Token
Collectors’ Association, which had about 700 members, and the
8
Western States Token Society, which had about 50 members.
(Weinberg, supra, 110 Cal.App.4th at p. 1127.)
Feisel accused Weinberg of stealing one of Feisel’s tokens at
a token show. Feisel confronted Weinberg, got no satisfaction,
and began a campaign to oust Weinberg from the token collecting
avocation. Feisel published an ad in the national association’s
monthly newsletter, called Talkin’ Tokens, that publicized
aspects of the situation. Then he sent letters to over 20
collectors. Feisel also succeeded in barring Weinberg from the
Western States Token Society Token Jamboree. Feisel continued
to disparage Weinberg by writing to other collectors and by
complaining to Weinberg’s fellow retired police officer that
Weinberg had a violent temper. (Weinberg, supra, 110
Cal.App.4th at pp. 1127–1129.)
Weinberg sued Feisel on some of the same claims as in this
case: defamation and intentional infliction of emotional distress.
Feisel filed a special motion to strike, which the trial court
denied. The Court of Appeal affirmed.
The Weinberg decision surveyed a mass of decisions,
including Rivero, to hold this controversy between token
collectors was a private matter and not of public interest. The
court stressed Feisel neither reported Weinberg to police nor sued
him civilly. Rather, Feisel merely “began a private campaign” to
discredit Weinberg “in the eyes of a relatively small group of
fellow collectors.” (Weinberg, supra, 110 Cal.App.4th at pp. 1126–
1127 & 1135.) To qualify as a matter of public interest, the focus
of the speaker’s conduct had to be more than a mere effort “to
gather ammunition for another round” in a private spat. (Id. at
pp. 1132–1133.)
9
The Weinberg court demanded “some degree of closeness
between the challenged statements and the asserted public
interest . . . [T]he assertion of a broad and amorphous public
interest is not sufficient . . . .” (Weinberg, supra, 110 Cal.App.4th
at p. 1132.) This aspect of Weinberg echoed Rivero’s rejection of
public interest arguments that sweep too broadly, and likewise
foreshadowed the Supreme Court decision in FilmOn.
As with Rivero, Weinberg has received Supreme Court
approval. (FilmOn, supra, 7 Cal.5th at p. 149 [citing both
Weinberg and Rivero approvingly].)
4
Our fourth guiding case is Workman, which involved facts
analogous to the present dispute: a fracas between neighbors.
Plaintiff Donna Sue Workman put her home up for sale,
found a buyer, and entered escrow. Defendant Colichman and
another were residents of a neighboring property. These
neighbors caused Workman’s sale to fall through by telling her
real estate agent they planned to build a house addition that
would interfere with the sweeping views from Workman’s house.
Workman sued these neighbors for interfering with contractual
relations and on other claims. The neighbors filed a special
motion to strike, which the trial court denied because the case
was “a private matter; not a public issue or an issue of public
interest.” The Court of Appeal affirmed. (Workman, supra, 33
Cal.App.5th at pp. 1042–1048.)
The Workman decision held that information about the
views from a private residence is not an issue of public interest
when the information affects only those directly interested in
buying or selling the house. (Workman, supra, 33 Cal.App.5th at
p. 1042.)
10
Workman relied on Weinberg. (Workman, supra, 33
Cal.App.5th at pp. 1048–1050.)
The Workman court said Weinberg was like the Workman
case in that both were instances of “limited communications to
small groups of interested people.” (Workman, supra, 33
Cal.App.5th at p. 1052.) “The views from a private residence do
not involve a matter of public concern.” (Id. at p. 1053.)
Workman echoed a familiar theme by deflating defendant’s
efforts to magnify a neighborhood dispute into something of large
social significance. Defendants claimed the suit was about a
public interest in attacking the “fraudulent practices of a real
estate broker in marketing real property to the public.” The
court’s response was curt: “This contention vastly overstates the
issue in this case.” (Workman, supra, 33 Cal.App.5th at p. 1048.)
Workman basically held there was no public interest in
squabbles between neighbors.
5
The fifth guiding precedent is Abuemeira, which was also
about fighting neighbors. This fight was violent, but in principle
the case was the same as Workman.
Yasser Abuemeira drove his motorcycle inside his gated
community. Then there was some sort of road rage. A man got
out of his car and told Abuemeira he was a superlawyer. What
happened next was hotly disputed, but these two neighbors
resorted to atrocious slurs and fisticuffs. The superlawyer began
to videotape the affray and then showed his video at homeowners
association meetings and to police and reporters. He created an
online petition demanding the Attorney General investigate the
incident. When Abuemeira sued him, the superlawyer filed a
special motion to strike. The trial court denied this motion on the
11
ground that the superlawyer’s efforts to publicize a dispute
between private people did not transform the dispute into an
issue of public interest. (Abuemeira, supra, 246 Cal.App.4th at
pp. 1294–1298.)
Abuemeira affirmed. Citing Weinberg, the court ruled a
“video recording of an unseemly private brawl, no matter how
wide its distribution, is far removed from a citizen's
constitutional right of petition or free speech involving a public
issue.” (Abuemeira, supra, 246 Cal.App.4th at pp. 1294 & 1298.)
The fight involved “private, anonymous” parties and was nothing
but a private dispute. (Id. at p. 1298.) Quoting Weinberg, the
Abuemeira court wrote there is no public interest if the speaker’s
conduct is merely an effort “to gather ammunition for another
round” in some private controversy. (Ibid.)
As in Workman, the holding in Abuemeira is that a
neighborhood row is not a matter of public interest.
6
The sixth and final guiding precedent is FilmOn. This
recent Supreme Court case was not factually close to our case:
there were no feuding neighbors. Rather, an internet provider
sued an internet authentication company. FilmOn nonetheless is
significant for two reasons. The first is straightforward; the
second is more complex.
First, FilmOn shows pre-internet rules do not change just
because a case now involves the internet. This point is
straightforward.
Second, the Supreme Court in FilmOn relied on Rivero and
Weinberg to reject public interest arguments that sweep too
broadly. We carefully study this second and more complex point.
12
FilmOn condemned public interest arguments “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. (FilmOn, supra, 7 Cal.5th at p. 140.)
The court observed the recurring effort “to discern what the
challenged speech is really ‘about’—a narrow, largely private
dispute, for example, or the asserted issue of public interest.” (Id.
at p. 149.) FilmOn reiterated Weinberg’s requirement there be
“some degree of closeness” between the challenged statements
and the asserted public interest. (Id. at p. 150.) For that reason,
that “a broad and amorphous public interest” can be connected to
a specific dispute is not enough. (Ibid.) The proper focus of the
inquiry instead must be on “the specific nature of the speech,” not
on “generalities that might be abstracted from it.” (Id. at p. 152.)
We follow that guidance in this case.
D
These six precedents show there was no public interest in
Ley’s internet post about Jeppson.
Neither Ley nor Jeppson were in the public eye.
None of their acts directly affected a large number of people
beyond the three households. Ley claimed the mantle of town
crier, but the conduct had directly involved only dog owner Ley,
cat owner Jeppson, and tree owner Cates.
Despite the medium of the internet, the topic was not of
widespread public interest. There is no issue of public interest
when the speaker’s words are merely an effort to gather
ammunition for another round in the speaker’s neighborhood
wrangle.
Ley and Jeppson had a history of personal conflict when
Ley decided to upload to the internet about Jeppson. Like the
13
union in Rivero, like the token collector in Weinberg, like the
house seller in Workman, and like the superlawyer in Abuemeira,
Ley sought to endow his statements with lofty justifications. But
the matter boiled down to Ley’s interest in gathering ammunition
for another round in his clash with Jeppson. Ley’s internet post
merely manifested, and remained, his altercation with his
neighbor.
Ley seeks to exalt his latest blast in the fray by making
three points: the website claimed a potential audience of 951;
Jeppson had been the target of an official court restraining order;
and Ley’s post invoked public safety.
As we have seen, cases over the years have deflated such
attempts at abstraction, which are typical fare. The same
principle holds here. The website had a potential audience of
951, but there is no evidence anyone actually read or cared about
Ley’s post. There was a restraining order on Jeppson that barred
him from harassing his tree-owning neighbor Cates. Ley
proclaimed Jeppson a threat to public safety, but this involved
Jeppson trimming Cates’s tree without her permission and
Jeppson putting “no trespassing” signs in his yard. Jeppson
owned guns, but the restraining order blocked Jeppson’s access to
them.
Ley’s arguments are “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 . . . ”
(FilmOn, supra, 7 Cal.5th at p. 140.)
Under the case law, this neighborhood flap did not raise
issues about the “public interest,” even though it made an
appearance on the internet.
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E
We distinguish the decision in Traditional Cat Assn., Inc. v.
Gilbreath (2004) 118 Cal. App. 4th 392, 397 (Traditional Cat).
That case involved two competing and confusingly named
associations, the “Traditional Cat Association” and “The
Traditional Cat Association, Inc.” The decision gave no
information about the size of these associations. The decision
called these associations “TCA” and “TTCA.” We follow this
usage.
A director and officer of TCA set up a website critical of
TTCA and supportive of TCA. TTCA fought back by suing TCA
and others about the website. TCA filed a special motion to
strike, which the trial court denied. The Traditional Cat decision
reversed this ruling. Traditional Cat held that, “[g]iven the
controversy surrounding the parties’ dispute and its evident
notoriety in the cat breeding community, the Web site statements
concerned matters of public interest in the cat breeding
community.” (Traditional Cat, supra, 118 Cal.App.4th at p. 397,
italics added.)
The 2004 Traditional Cat decision cited none of the six
precedents guiding us today. Four of those precedents were
decided after 2004, so that learning was simply unavailable in
2004. In any event, Traditional Cat concerned two organizations
and an online public of some indeterminate magnitude. It was
not like this case.
Feuds can metastasize into the Hatfields and McCoys or
the Montagues and Capulets. This tiff, though bitter, remained
strictly local: a private affair and not a matter of “public
interest.”
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DISPOSITION
The order is affirmed. Costs to Jeppson.
WILEY, J.
We concur:
BIGELOW, P. J.
STRATTON, J.
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