Tannous v. Rickel CA1/3

Filed 3/6/13 Tannous v. Rickel 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
LINDA ELISA TANNOUS et al.,
Plaintiffs and Respondents,
A134832
v.
ROLLAND JAMES RICKEL, (Mendocino County
Super. Ct. No. CVPO 10-56682)
Defendant and Appellant.
A motor home park resident made statements on television accusing the park
owners of being “lazy,” “liars,” and “terrorists” from the Middle East, among other
things. The park owners sued for defamation and the park resident claimed the lawsuit
was a strategic lawsuit against public participation (SLAPP) subject to a special motion
to strike. (Code Civ. Proc., § 425.16.)1 The court denied the motion and this appeal
followed. We conclude that the park owners established a probability of prevailing on
their claims and shall affirm the order.
STATEMENT OF FACTS
Plaintiffs Linda, Yousef, and Issa Tannous own a mobile home park in Ukiah,
California.2 Defendant Rolland James Rickel is a resident of the park and produces a
local television show. In July 2010, plaintiffs filed this action for defamation and related
claims upon allegations that Rickel made false and malicious statements on his show.
1
All further section references are to the Code of Civil Procedure.
2
Linda and Yousef Tannous are a married couple. Issa is Yousef’s brother.
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Allegedly, Rickel accused the plaintiffs, who are from Jordan, of being prejudiced against
“White park residents,” “acting like terrorists,” sexually abusing residents, and illegally
growing or using marijuana. Rickel claimed his statements were protected speech and
filed a special motion to strike under the SLAPP statute. (§ 425.16.) The court denied the
motion. Rickel appealed but the appeal was dismissed because he failed to provide an
adequate record.
Plaintiffs filed an amended complaint reasserting the above defamatory statements
and adding others. Plaintiffs alleged that Rickel made defamatory statements on his
television show from May 2010 through October 2011, including statements that
plaintiffs are “lazy,” “liars,” and “terrorists” from the Middle East, “associated with
terrorist activities and planes and so forth,” illegally “overcharge veterans, seniors, and
other individuals in the mobile home park,” and discriminate against “white folks.”
Rickel also allegedly said that the plaintiffs, who operate a used car lot in addition to the
mobile home park, “are not ethical in their sales of vehicles” and “are trying to ‘rip off’
the public.” Rickel assertedly derided plaintiffs on his television show by “intentionally
mispronoun[ing] the Plaintiffs’ name in order to call them ‘asses’ by separating their last
name and accentuating the last part of their name, as follows: ‘Tan asses.’ ”
Rickel claimed his statements were protected speech and filed a motion to strike
the amended pleading as a SLAPP suit. Plaintiffs opposed the motion, arguing that the
challenged statements were not protected speech because they were made in connection
with a private landlord-tenant dispute rather than an issue of public interest and, even if
public interest was implicated, they were likely to prevail on the merits.
The court denied the motion to strike: “The court finds that defendant [Rickel] has
made a threshold showing . . . , albeit marginally, that plaintiffs’ causes of action arise
from the defendant’s exercise of his constitutional right of free speech. The court further
finds that plaintiffs amply . . . demonstrat[ed] a probability of prevailing on their claims.”
The court also found that Rickel’s motion was a repetition of his prior failed motion,
“completely without merit,” “frivolous” and “solely intended to cause unnecessary delay”
and awarded plaintiffs’ attorney fees incurred in opposing the motion. The court awarded
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$4,000, which was less than the value of the fees incurred, because the court was
“cognizant of the fact that the defendant lacks significant financial resources” and is self-
represented. Rickel appeals the court’s order.3
DISCUSSION
“Section 425.16, subdivision (b)(1), provides: ‘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 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.’ The analysis of an anti-SLAPP motion thus involves two steps. ‘First, the court
decides whether the defendant has made a threshold showing that the challenged cause of
action is one “arising from” protected activity. (§ 425.16, subd. (b)(1).) If the court finds
such a showing has been made, it then must consider whether the plaintiff has
demonstrated a probability of prevailing on the claim.’ [Citation.] ‘Only a cause of action
that satisfies both prongs 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.’ [Citation.] We review an order granting or denying a motion
to strike under section 425.16 de novo.” (Oasis West Realty, LLC v. Goldman (2011) 51
Cal.4th 811, 819-820, italics omitted.)
Rickel has made a threshold showing that the defamation and related causes of
action arise from protected activity. Protected activity 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).) Rickel’s statements were made
in a public forum. The first amended complaint alleges that Rickel’s statements were
3
Plaintiffs assert that Rickel’s appellate briefs are materially deficient and urge us to
dismiss the appeal. Rickel, who appears in propria persona, has presented flawed briefs
but we will resolve the appeal on its merits. We do, however, grant plaintiffs’ motion to
strike the exhibits to Rickel’s reply brief and shall disregard all references to those
documents because they were not placed in evidence below.
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made on a television program that was broadcast “on numerous occasions” and “heard by
thousands of people throughout Mendocino County.” “A ‘public forum’ is traditionally
defined as a place that is open to the public where information is freely exchanged.”
(Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 475.) “[A] public
forum is not limited to a physical setting, but also includes other forms of public
communication” (id. at p. 476) like “[e]lectronic communication media”
(ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1006). “[A] widely
disseminated television broadcast is undoubtedly a public forum.” (Metabolife Intern.,
Inc. v. Wornick (S.D. Cal. 1999) 72 F.Supp.2d 1160, 1165, affd. in part & revd. in part
(9th Cir. 2001) 264 F.3d 832.) The statements also were made in connection with an issue
of public interest. While the plaintiffs are private parties, Rickel’s statements concerning
violations of mobile home laws and unfair business practices are of public interest. Public
interest is construed broadly under the anti-SLAPP statute and may encompass activities
between private individuals.4 (Hecimovich v. Encinal School Parent Teacher
Organization (2012) 203 Cal.App.4th 450, 464-465.)
The motion to strike was properly denied because plaintiffs have demonstrated a
probability of prevailing on their claims. Only an action that lacks all merit is a SLAPP
subject to a special motion to strike. (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) “[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.” ’ ” (Id. at
pp. 88-89.)
The plaintiffs asserted causes of action for defamation, intentional infliction of
emotional distress and negligent infliction of emotional distress. “Defamation requires a
4
Whether the challenged statements constitute a matter of public concern for purposes of
defamation law is a separate issue upon which we express no opinion. (Carney v. Santa
Cruz Women Against Rape (1990) 221 Cal.App.3d 1009, 1019-1020.)
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publication that is false, defamatory, unprivileged, and has a tendency to injure or cause
special damage.” (Hawran v. Hixson (2012) 209 Cal.App.4th 256, 277.) “The elements of
a cause of action for intentional infliction of emotional distress are: ‘ “(1) outrageous
conduct by the defendant, (2) intention to cause or reckless disregard of the probability of
causing emotional distress, (3) severe emotional suffering and (4) actual and proximate
causation of the emotional distress.” ’ ” (Wong v. Tai Jing (2010) 189 Cal.App.4th 1354,
1376.) “A claim of negligent infliction of emotional distress is not an independent tort but
the tort of negligence to which the traditional elements of duty, breach of duty, causation,
and damages apply.” (Id. at p. 1377.) Here, the intentional and negligent infliction of
emotional distress claims are based on the same conduct as the defamation claim:
Rickel’s alleged false and malicious statements.
Plaintiffs presented a prima facie showing of facts sufficient to support their
claims. They submitted transcripts of the television shows with Rickel’s statements that
plaintiffs are terrorists from the Middle East, prejudiced against White motor home park
residents, illegally growing or using marijuana, charging illegal fees, and sexually
abusing park residents. Plaintiffs also submitted declarations asserting that the statements
“are absolutely and unequivocally false” and that Rickel has used his television show “in
a vindictive manner to defame and harass” them. Plaintiffs further declared that Rickel’s
statements injured their reputation in the community, exposed them to ridicule and
hatred, and caused extreme emotional upset marked by a fear that someone may believe
them to be terrorists and lead that person to “seriously harm or kill” them. Rickel presents
no reasoned response to this evidence; he simply asserts that plaintiffs failed to establish
a probability of prevailing on their claims without any discussion of the evidence or
citation of legal authority. The trial court properly denied the motion to strike the
amended complaint.
The trial court also properly awarded plaintiffs attorney fees incurred in opposing
the motion to strike. “If the court finds that a special motion to strike is frivolous or is
solely intended to cause unnecessary delay, the court shall award costs and reasonable
attorney’s fees to a plaintiff prevailing on the motion.” (§ 425.16, subd. (c).) Rickel’s
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motion to strike the amended complaint was wholly unmeritorious and a repetition of his
failed motion to strike the original complaint. We decline, however, to penalize Rickel
further. Plaintiffs’ request for attorney fees incurred on appeal and separate motion for
the imposition of sanctions are denied.
DISPOSITION
The order is affirmed.
_________________________
Pollak, J.
We concur:
_________________________
McGuiness, P. J.
_________________________
Siggins, J.
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