Zenteno v. Conroy CA2/4 ( 2023 )

Filed 6/20/23 Zenteno v. Conroy CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
JUAN ZENTENO et al., B311202
Plaintiffs and Respondents, (Los Angeles County
v. Super. Ct. No.
20STCV03904)
ROCHELLE CONROY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Maureen Duffy-Lewis, Judge. Affirmed.
Morris & Stone and Aaron P. Morris for Defendant and
Appellant.
Mostafavi Law Group and Amir Mostafavi for Plaintiffs
and Respondents.
INTRODUCTION
Juan Zenteno and HP Highland Postal Center Inc. (HP)
sued Rochelle Conroy for allegedly false statements she made
online about Zenteno and HP.1 Conroy appeals from the trial
court’s order granting in part and denying in part her special
motion to strike the operative complaint under Code of Civil
Procedure section 425.16, the anti-SLAPP statute.2 For the
reasons discussed below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Second Amended Complaint’s Allegations
The second amended complaint (SAC) alleges the following
facts.3 Zenteno is an employee and shareholder of HP. HP is a
business offering shipping and mailing services, including
personal and business mailboxes.
From 2014 to 2017, Conroy rented a mailbox from HP. In
2017, HP terminated the mailbox rental agreement between it
and Conroy because she came into the store screaming and
accusing Zenteno of stealing her mail, and her dog was not
leashed on several occasions.
1 We refer to Zenteno and HP collectively as plaintiffs.
Plaintiffs also sued Guido Giovanni Giammarco, but he is not a
party to this appeal.
2 SLAPP is the acronym for strategic lawsuit against public
participation. All further undesignated statutory references are
to the Code of Civil Procedure.
3 We omit allegations regarding Giammarco because they are
not relevant to this appeal.
2
On August 21, 2019, Conroy wrote and posted statements
about Zenteno on Nextdoor.com, an online social network in
which registered users can communicate with other nearby users
and stay informed about what is happening in the neighborhood.
One of Conroy’s posts stated, among other things, that “persons
using [HP] for Amazon returns risk not having their packages
delivered because [Zenteno] ‘is a crook and not to be trusted. He
has a horrible demeanor and his shop should be avoided at all
costs so he goes out of business. The Palisades doesn’t need such
a horrible business in our town.’”
On April 20, 2020, Conroy emailed plaintiffs’ counsel
stating Zenteno “is ‘guilty of tampering with official United
States Treasury mail’ and that he was a crook.” In the same
email, Conroy stated “she has ‘contacted the lady who posted that
[Zenteno] stole an insurance check and took it to Wells Fargo to
try and cash it.’”
After publication of the “false and malicious statements”
made on August 21, 2019 and April 20, 2020, “Plaintiffs’
reputations were significantly damaged in their community.”
Based on these allegations, plaintiffs sued Conroy for six
causes of action: (1) defamation-libel; (2) trade libel; (3)
intentional interference with contractual relations; (4) intentional
interference with prospective economic relations; (5) negligent
interference with prospective economic relations; (6) negligent
infliction of emotional distress.
B. The Special Motion to Strike
Conroy moved to strike the SAC, contending the
statements underlying its six causes of action are protected under
the anti-SLAPP statute, and plaintiffs could not demonstrate a
probability of prevailing on the merits of their claims.
3
Specifically, Conroy contended the statements she made on
Nextdoor.com, detailed in paragraph 19 of the SAC, are protected
under section 425, subdivisions (e)(3) and (e)(4), because they
were statements made in a public forum in connection with an
issue of public interest. She further contended the statements in
paragraph 21 of the SAC (regarding the email to plaintiffs’
counsel) constitute protected speech under section 425,
subdivision (e)(2), because the statements “occurred during a
settlement discussion, related to the litigation, between [Conroy]
and [p]laintiffs’ counsel . . . .” Conroy next argued plaintiffs could
not demonstrate a probability of prevailing on their first cause of
action for libel because, according to Conroy, the statements
made in paragraph 19 are hyperbolic opinion, and the statements
in paragraph 21 are absolutely privileged under Civil Code
section 47, subdivision (b). Finally, she argued the remaining
causes of action should be stricken because “each is merely
derivative of the libel claim.”
In opposition, plaintiffs argued Conroy’s statements in
paragraph 19 were not a matter of widespread public interest,
and the statements in paragraph 21 were “merely provided as
evidence” of why Zenteno believes Conroy continues to accuse
Zenteno of tampering with mail, not as a basis of Zenteno’s
causes of action. Alternatively, plaintiffs contended that even if
the statements are protected under the anti-SLAPP statute, they
can demonstrate a probability of prevailing on the merits because
the statements are provable false assertions of fact.
After a hearing on the special motion to strike, the trial
court granted the motion in part and denied it in part. We
cannot, based on the language of the minute order alone,
decipher the court’s precise findings because it refers to
4
statements using letters and numbers (i.e., 1A, 2B, etc.) without
identifying those statements. The parties agree, however, that
the trial court made the following rulings, as relevant to this
appeal: (1) the statements made in paragraphs 19 and 21 of the
SAC constitute protected activity under the anti-SLAPP statute;
(2) the statements in paragraph 21 of the SAC were stricken
because they are subject to the litigation privilege; (3) plaintiffs
established a probability of prevailing on the merits of causes of
action one through four based on the statements in paragraph 19
of the SAC; and (4) the fifth and sixth causes of action were
stricken from the SAC because “[t]here is no such cause of action
as Negligent Interference with Prospective Business” and
“Negligent Infliction of Emotional Distress is a personal injury
tort for bystander distress.”
Conroy then moved for attorneys’ fees and costs under
section 415.16, subdivision (c)(1), as the partially prevailing party
on her anti-SLAPP motion. The court granted the motion,
awarding attorneys’ fees to Conroy in the amount of $25,000.
Conroy timely appeals from the order on her anti-SLAPP
motion to the extent it was denied.
DISCUSSION
A. The Anti-SLAPP Statute and Standard of Review
SLAPP suits are “generally meritless suits brought by large
private interests to deter common citizens from exercising their
political or legal rights or to punish them for doing so.” (Wilcox v.
Superior Court (1994) 27 Cal.App.4th 809, 816, disapproved on
another ground in Equilon Enterprises v. Consumer Cause, Inc.
(2002) 29 Cal.4th 53, 68.) To combat these types of suits, the
Legislature enacted section 425.16—known as the anti-SLAPP
statute—to provide a procedural remedy to dispose of lawsuits or
5
individual causes of action that are brought to chill the valid
exercise of a person’s constitutional rights. (Rusheen v. Cohen
(2006) 37 Cal.4th 1048, 1055-1056; see Baral v. Schnitt (2016) 1
Cal.5th 376, 395; § 425.16, subd. (b)(1).)
The anti-SLAPP statute requires a two-step process: first,
the moving party must establish that the lawsuit’s claims are
based on activity protected by the statute. (Briganti v.
Chow (2019) 42 Cal.App.5th 504, 508 (Briganti).) If the defendant
meets that burden, the burden shifts to the plaintiff to
demonstrate that each challenged claim based on protected
activity is legally sufficient and factually substantiated. (Ibid.)
“‘[W]ithout resolving evidentiary conflicts,’” the court 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. (Ibid.) “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).)” (Briganti, supra, 42 Cal.App.5th
at p. 508.) “A cause of action is subject to dismissal under the
statute only if both steps of the anti-SLAPP analysis are met.”
(Malin v. Singer (2013) 217 Cal.App.4th 1283, 1293.)
We review the trial court’s decision to grant or deny an
anti-SLAPP motion de novo. (Monster Energy Co. v. Schechter
(2019) 7 Cal.5th 781, 788.)
B. First Prong: Protected Activity
Conroy’s sole contention on appeal is although the trial
court correctly found the statements posted on Nextdoor.com (the
paragraph 19 statements) constitute protected activity, it erred
by concluding those statements are sufficient to support
6
plaintiffs’ causes of action for defamation-libel, trade libel,
intentional interference with contractual relations, and
intentional interference with prospective economic relations
(causes of action one through four). We therefore limit our
analysis to the paragraph 19 statements, beginning with whether
those statements constitute protected activity under the anti-
SLAPP statute.
It is undisputed that on August 21, 2019, Conroy wrote a
post on Nextdoor.com titled, “Amazon at Carusoville versus
[Zenteno] at HP Highland Post.” Paragraph 19 of the SAC quotes
only an excerpt of the post. For context, however, we quote the
post in its entirety: “I was pleasantly surprised to be able to
easily drop of[f] a return at the Amazon bookstore at Carusoville.
I will never shop there as I can’t stand what he has done to my
town, however, I am happy to use the resources. The people were
pleasant and nice to deal with. [¶] For those of you who think
[Zenteno] at HP Highland Post is great for Amazon returns, you
can stop using him. You risk not having your package delivered
as he is a crook and not to be trusted. He has a horrible demeanor
and his shop should be avoided at all costs so he goes out of
business. The Palisades doesn’t need such a horrible business in
our town. [¶] The people at Amazon at Carusoville were way
nicer to engage with and I highly urge you to use the Amazon
store in the Palisades to execute your returns.”
Conroy contends the statements on Nextdoor.com are
protected under section 425.16, subdivision (e)(3), as written
statements “made in a place open to the public or a public forum
in connection with an issue of public interest[.]” She therefore
contends the first prong of the anti-SLAPP statute is satisfied
because the paragraph 19 statements form the basis of the causes
7
of action against her in the SAC. Plaintiffs do not contest the
statements were made in a public forum. (See Barrett v.
Rosenthal (2006) 40 Cal.4th 33, 41, fn. 4 [“Web sites accessible to
the public . . . are ‘public forums’ for purposes of the anti-SLAPP
statute”].) They argue, however, that Conroy’s post does not
involve an issue of public interest. As discussed below, we agree
with Conroy.
Section 425.16 does not define “public interest[,]” but our
Supreme Court set forth a general definition by identifying a
“nonexclusive and sometimes overlapping” list of three qualifying
categories of statements or conduct: (1) the statement concerns a
person or entity in the public eye; or (2) the statement involves
conduct that could directly affect a large number of people beyond
the direct participants; or (3) the statement involves a topic of
widespread public interest. (Rand Resources, LLC v. City of
Carson (2019) 6 Cal.5th 610, 621, citing Rivero v. American
Federation of State, County, and Municipal Employees, AFL-CIO
(2003) 105 Cal.App.4th 913, 919-924.) Additionally, “although
‘not every Web site post involves a public issue [citation],
consumer information that goes beyond a particular interaction
between the parties and implicates matters of public concern that
can affect many people is generally deemed to involve an issue of
public interest for purposes of the anti-SLAPP statute.” (Wong v.
Jing (2010) 189 Cal.App.4th 1354, 1366 (Wong); see also
Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 898 (Wilbanks)
[“[c]onsumer information” posted on the Internet “at least when it
affects a large number of persons, also generally is viewed as
information concerning a matter of public interest”].) The public
interest requirement of section 425.16, subdivision (e)(3), must be
“‘construed broadly’ so as to encourage participation by all
8
segments of our society in vigorous public debate related to issues
of public interest.” (Seelig v. Infinity Broadcasting Corp. (2002) 97
Cal.App.4th 798, 808, citing § 425.16, subd. (a).)
Applying these principles, we agree with the trial court
that Conroy’s post was made “in connection with an issue of
public interest[.]” (§ 425.16, subd. (e)(3).) Beginning with the title
of the post, “Amazon at Carusoville versus [Zenteno] at HP
Highland Post[,]” it is clear to the reader that the purpose of the
post is to review two businesses. The substance of the post
confirms that purpose. It compares the businesses by stating, in
part, that “[t]he people were pleasant and nice to deal with” at
Amazon compared to Zenteno who has a “horrible demeanor.” It
further warns consumers not to use HP’s mailing services,
otherwise “[y]ou risk not having your package delivered . . . . .”
The post concludes by “urg[ing]” consumers to “use the Amazon
store” instead of HP. Moreover, the post is written in general
terms, seemingly based on Conroy’s many interactions with
Zenteno, going “beyond a particular interaction between [Conroy
and Zenteno].” (Wong, supra, 189 Cal.App.4th at p. 1366.) We
therefore conclude this post falls squarely into the “[c]onsumer
information” category, which “generally is viewed as information
concerning a matter of public interest.” (Wilbanks, supra, 121
Cal.App.4th at pp. 898-900 [statements about an insurance
broker were a matter of public concern because the defendant’s
warning not to use the broker was “ostensibly provided to aid
consumers choosing among brokers”].) That only nine people
commented on the post does not, as plaintiffs contend, turn the
post into a private dispute between Zenteno and Conroy.
Notwithstanding the relatively small number of people who took
the time to reply to the post, members of the public, as potential
9
customers of HP, have an interest in being informed of Zenteno’s
alleged untrustworthiness.
Plaintiffs’ reliance on Jeppson v. Ley (2020) 44 Cal.App.5th
845 (Jeppson) is misplaced. In Jeppson, the plaintiff sued the
defendant for defamation based on a statement the defendant
posted on Nextdoor.com. (Id. at p. 848.) But the similarities stop
there. In Jeppson, two neighbors were in a feud because
defendant’s “dog killed [plaintiff’s] cat.” (Ibid.) They settled the
dispute, and entered into an agreement with a nondisparagement
clause. (Ibid.) The defendant, however, posted a “hostile message”
on Nextdoor.com stating, in part, that: he felt it was important to
provide information about the case against [plaintiff] for
trespassing and vandalism on his neighbor’s property; a
restraining order had been issued against the plaintiff; “and the
courts forced [plaintiff] to relinquish his gun arsenal due to the
danger he poses to his neighbors.” (Id. at pp. 848-849.) Plaintiff
sued the defendant for breach of contract, defamation, and
intentional infliction of emotional distress. (Id. a p. 849.)
Defendant filed an anti-SLAPP motion, which the trial court
denied because the statements raised no issue of public interest.
(Id. at p. 848.) The Court of Appeal affirmed, concluding “this
neighborhood flap did not raise issues about the ‘public interest,’
even though it made an appearance on the internet.” (Id. at p.
857.) Rather, the defendant’s “words [were] merely an effort to
gather ammunition for another round in the speaker’s
neighborhood wrangle.” (Id. at p. 856.)
The facts here are different. As discussed above, Conroy’s
post was not merely about a “fracas between neighbors” (Jeppson,
supra, 44 Cal.App.5th at p. 854), or a recounting of a one-time
dispute. Unlike the statements in Jeppson, here, Conroy’s post
10
warned consumers about Zenteno’s business and urged
consumers to use a competitor based on her dealings with
plaintiffs over the years. Jeppson, therefore, does not assist
plaintiffs.
Accordingly, we conclude Conroy met her burden of
establishing the post on Nextdoor.com constitutes protected
activity under section 425.16, subdivision (e)(3), and the burden
therefore shifts to plaintiffs in the second step of the analysis.
C. Second Prong: Probability of Success
Under the second prong of the anti-SLAPP analysis,
plaintiffs have the burden of establishing a probability of
prevailing on their claims. (Jarrow Formulas, Inc. v. LaMarche
(2003) 31 Cal.4th 728, 733; § 425.16, subd. (b)(1).) Only a cause
of action that “lacks even minimal merit—is a SLAPP, subject to
being stricken under the statute.” (Navellier v. Sletten (2002) 29
Cal.4th 82, 89.) “At this stage, ‘“[t]he court does not weigh
evidence or resolve conflicting factual claims. Its inquiry is
limited to whether the plaintiff has stated a legally sufficient
claim and made a prima facie factual showing sufficient to
sustain a favorable judgment. It accepts the plaintiff’s evidence
as true, and evaluates the defendant’s showing only to determine
if it defeats the plaintiff’s claim as a matter of law.”’” (Wilson v.
Cable News Network, Inc. (2019) 7 Cal.5th 871, 891.)
Conroy contends plaintiffs have not met their burden to
demonstrate a probability of prevailing on their claim for libel
because her post contains nonactionable statements of opinion
rather than fact. 4 We are unpersuaded.
4 Libel is a form of defamation effected in writing. (Civ. Code,
§§ 44 & 45.)
11
“‘The sine qua non of recovery for defamation . . . is the
existence of falsehood.’ [Citation.] Because the statement must
contain a provable falsehood, courts distinguish between
statements of fact and statements of opinion for purposes of
defamation liability. Although statements of fact may be
actionable as libel, statements of opinion are constitutionally
protected.” (McGarry v. University of San Diego (2007) 154
Cal.App.4th 97, 112.) “The critical determination of whether the
allegedly defamatory statement constitutes fact or opinion is a
question of law.” (Gregory v. McDonnel Douglas Corp. (1976) 17
Cal.3d 596, 601.) In determining whether an opinion is
actionable, we must look at the totality of the circumstances
which gave rise to the statements and in particular the context in
which the statements were made. (Franklin v. Dynamic Details,
Inc. (2004) 116 Cal.App.4th 375, 385.) “‘This contextual analysis
demands that the courts look at the nature and full content of the
communication and to the knowledge and understanding of the
audience to whom the publication was directed.’” (Id. at p. 389)
Here, as discussed above, the SAC alleges Conroy’s “false
and malicious” post “stated, among other things, that persons
using [HP] for Amazon returns risk not having their packages
delivered because [Zenteno] ‘is a crook and not to be trusted. He
has a horrible demeanor and his shop should be avoided at all
costs so he goes out of business. The Palisades doesn’t need such
a horrible business in our town.’” Conroy characterizes her post
as merely hyperbolic opinion that conveys no provable factual
assertions. But “[t]he critical question is not whether a statement
is fact or opinion, but ‘“whether a reasonable fact finder could
conclude the published statement declares or implies a provably
false assertion of fact.”’” (Wong, supra, 189 Cal.App.4th at
12
p.1370.) Here, a reasonable factfinder could easily conclude
Conroy’s statement that “you risk not having your package
delivered as [Zenteno] is a crook and not to be trusted” implies an
assertion of fact, i.e., Zenteno steals customers’ packages.
Moreover, to the extent part of the post reflects Conroy’s opinion
that Zenteno has a “horrible demeanor” and HP is a “horrible
business[,]” those opinions appear to be tied to the provably false
assertion of fact that Zenteno steals customers’ mail and
packages. Indeed, Zenteno emphatically refutes this factual
assertion in his declaration in support of his opposition to
Conroy’s anti-SLAPP motion: “I have never stolen a single
package that was intended for one of our customers. I have never
failed to deliver a package that was being sent to one of our
customers.” (See Wilson v. Cable News Network, Inc., supra, 7
Cal.5th at p. 891 [we accept “the plaintiff’s evidence as true” in
determining probability of success in the second stage of the anti-
SLAPP analysis].)
The cases cited by Conroy compel no different result. For
example, in John Doe 2 v. Superior Court (2016) 1 Cal.App.5th
1300, 1318, the court held emails were not actionable as libel
because “the words ‘whistle-blow’ ‘bad business practices’ and
‘burned’ are too vague and amorphous to constitute an accusation
of specific wrongdoing.” The court explained: The “behavior one
person regards as a ‘bad business practice’ may be acceptable to
another person and conduct causing one person to feel ‘burned’
may not affect another person at all.” (Id. at p. 1319.) There is
nothing vague or amorphous about Conroy’s statement that
customers “risk not having [their] packages delivered as
[Zenteno] is a crook and not to be trusted.” Instead, the statement
implies knowledge of specific conduct (Zenteno steals packages).
13
(See Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 18-19
[110 S. Ct. 2695, 111 L.Ed.2d 1] [“[s]imply couching . . .
statements in terms of opinion does not dispel [false and
defamatory] implications” where the speaker implies “a
knowledge of facts which lead to the [defamatory] conclusion”].)
Conroy’s reliance on Standing Committee on Discipline of
the United States Dist. Court v. Yagman (9th Cir. 1995) 55 F.3d
1430 (Yagman) is also misplaced. There, the court held an
attorney could not be disciplined for calling a judge “dishonest”
because the comment is protected by the First Amendment as an
expression of opinion. (Id. at p. 1440.) The court explained: “The
term ‘dishonest’ was one in a string of colorful adjectives [the
attorney] used to convey the low esteem in which he held [the
judge]. The other terms he used – ‘ignorant,’ ‘ill-tempered,’
‘buffoon,’ ‘sub-standard human,’ ‘right-wing fanatic,’ ‘a bully,’ ‘one
of the worst judges in the United States’ – all speak to
competence and temperament rather than corruption; together
they convey nothing more substantive than [the attorney’s]
contempt for [the judge].” (Ibid.)
Yagman is distinguishable for two reasons. First, it was not
in the anti-SLAPP context, and thus, the “minimal merit”
standard did not apply. (Navellier v. Sletten, supra, 29 Cal.4th at
p. 89.) Second, unlike in Yagman, Conroy’s statement that
Zenteno cannot be trusted is tied to specific dishonest conduct
capable of being proven false (i.e., that Zenteno steals customers’
packages).
For these reasons, we conclude plaintiffs made the
requisite minimal showing required under the second prong of
the anti-SLAPP statute on the merits of their libel claim. The
14
trial court, therefore, properly denied Conroy’s request to strike
the first cause of action for libel.5
D. Attorneys’ Fees and Costs
In their respondents’ brief on appeal, plaintiffs contend the
trial court erred by awarding $25,000 in attorneys’ fees and costs
to Conroy. They argue Conroy was not the prevailing party on
her anti-SLAPP motion because the court declined to strike
causes of action one through four, and the fifth and sixth causes
of action were stricken for reasons other than that they are
subject to an anti-SLAPP motion.
Plaintiffs correctly note there is a split of authority
regarding whether an order granting or denying attorneys’ fees
rendered after a ruling on an anti-SLAPP motion, as occurred
here, is directly appealable. (Compare Doe v. Luster (2006) 145
Cal.App.4th 139, 145-150 [holding there is no statutory basis for
an immediate appeal of a separate order awarding or denying
fees under section 425.16, subdivision (c)] with City of Colton v.
Singletary (2012) 206 Cal.App.4th 751, 781-782 [holding an order
awarding or denying fees under section 425.16, subdivision (c) is
directly appealable under the collateral order exception to the one
5 Conroy’s only contention on appeal regarding the trial
court’s order declining to strike causes of action two through four
is that those causes of action should have been stricken for the
same reasons as the libel cause of action (i.e., the claims fail
because Conroy’s post is a statement of opinion, not fact). In the
trial court, Conroy similarly only argued that causes of action two
through four were derivative of the libel claim. Having concluded
plaintiffs met their burden of demonstrating a probability of
prevailing on the libel claim, we further conclude the trial court
did not err by declining to strike causes of action two through
four on that basis.
15
final judgment rule].) We need not resolve this conflict here,
however. Plaintiffs did not file a cross-appeal from the order
granting Conroy’s motion for attorneys’ fees and costs despite
seeking reversal of that order. Thus, even assuming (without
deciding) the attorneys’ fee order is directly appealable, we lack
jurisdiction to consider it because no appeal was taken from it.
(See, e.g., Faunce v. Cate (2013) 222 Cal.App.4th 166, 170 [“We
have no jurisdiction over an order not mentioned in the notice of
appeal”].)
16
DISPOSITION
The order granting in part and denying in part Conroy’s
special motion to strike the SAC is affirmed. Plaintiffs are
awarded their costs on appeal.6
CURREY, Acting P. J.
We concur:
COLLINS, J.
MORI, J.
6 Plaintiffs seek sanctions against Conroy for filing a
frivolous appeal. Sanctions for prosecuting a frivolous appeal
should be used sparingly to deter only the most egregious
conduct. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650-
651.) Although we conclude Conroy’s appeal lacks merit, it does
not constitute such egregious misconduct that sanctions are
warranted.
17