Spencer v. Mowat

Filed 3/24/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
COREY SPENCER et al., B295738
Plaintiffs and Respondents, (Los Angeles County
Super. Ct. No. BC629596)
v.
CHARLIE MOWAT et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Carolyn Kuhl, Judge. Affirmed.
Jeff Lewis Law, Jeffrey Lewis and Sean C. Rotstan for
Defendant and Appellant Michael Thiel.
Beffa Law and Darin T. Beffa for Defendant and Appellant
Charlie Mowat.
Hanson Bridgett, Gary A. Watt, Lisa M. Pooley, Kimon
Manolius, Kurt A. Franklin, Samatha D. Wolff, Josephine M.
Petrick and David C. Casarrubias; Otten Law and Victor Otten
for Plaintiffs and Respondents Corey Spencer, Diana Milena
Smoluchowska-Miernik and Coastal Protection Rangers, Inc.
__________________________
Lunada Bay is a premier surf spot, located in Palos Verdes
Estates. The Lunada Bay Boys are alleged to be a group of young
and middle-aged men, local to Palos Verdes Estates, who consider
themselves to be the self-appointed guardians of Lunada Bay.
One of their tenets is to keep outsiders away from the surf
location through threats and violence. Plaintiffs are non-locals
who have tried to surf Lunada Bay, but encountered harassment
by the Bay Boys. They brought suit against the Bay Boys and
more than a dozen of its individual members. Two of those
members filed motions to dismiss under the anti-SLAPP law
(Code Civ. Proc., § 425.16), arguing that the allegations against
them were based on protected speech and petitioning activity.
The trial court denied the motions, concluding that the
allegations against the moving defendants were actually based on
a conspiracy to commit assault and other torts. Those defendants
appeal, and we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Allegations of the Complaint
The operative complaint is the first amended complaint.
The plaintiffs are two surfers, Corey Spencer and Diana Milena
Smoluchowska-Miernik, and Coastal Protection Rangers, a non-
profit dedicated to protecting California’s beaches and ensuring
they are safe and accessible to all visitors.
The defendants are the Lunada Bay Boys, a number of its
individual members, including appellants Michael Thiel and
Charlie Mowat, and the City of Palos Verdes Estates. Thiel and
Mowat are the only defendants who are appellants in this appeal.
Our discussion of the complaint’s factual allegations will
therefore focus on their conduct, although some understanding of
the general allegations is necessary.
2
A. General Allegations Against the Members of the Bay
Boys
Broadly speaking, plaintiffs allege that the Lunada Bay
Boys, sometimes with the tacit approval of City officials who did
nothing to stop them, engaged in what is known as “localism” – a
practice of keeping outsiders away from the surf site through
threats and violence.1 The complaint alleges that the Bay Boys
have “blocked public access to the beaches of Palos Verdes
Estates, Lunada Bay in particular, for over 40 years. In what is a
multi-generational practice of extreme ‘localism,’ and using rules
established by the ‘older boys,’ the Bay Boys use physical
violence, threats of bodily harm, vandalism to visitor[s’] vehicles,
verbal harassment and other intimidation to enforce their
unwritten rule: ‘If you don’t live here, you don’t surf here.’
Indeed, members of the Bay Boys believe it is ‘disrespectful’ for
outsiders to visit, use or even photograph ‘their’ beach.”
The Bay Boys, specifically including Mowat, were alleged to
have built and maintained an unpermitted masonry rock and
wood fort seating area, known as “Rock Fort,” near the beach.
“The steep switch-backed trails that lack proper improvements
act as perfect pinch points, which the Lunada Bay Boys use to
block access to the shoreline. From the Rock Fort and the bluffs
above, the Individual Members of the Lunada Bay Boys
1 The complaint alleges more than just tacit approval on the
part on the City; it alleges that the City used its discretion to
enforce municipal laws in a manner that discriminates against
outsiders, and ignored requests of the California Coastal
Commission to make Lunada Bay more accessible to the public.
As we are only concerned with the anti-SLAPP motions of Thiel
and Mowat, we do not further discuss the allegations against the
City.
3
orchestrate illegal activity that is intended to keep the public
away. Some of the more egregious tactics include: (1) physically
obstructing outsiders’ access to the beach trails; (2) throwing
rocks; (3) running people over with surfboards in the water;
(4) punching outsiders; (5) stealing outsiders’ wallets, wetsuits
and surfboards; (6) vandalizing vehicles and personal property,
including slashing tires and waxing pejorative slurs onto vehicle
windows; (7) levying threats against outsiders; and
(8) intimidating outsiders with verbal insults, gestures, and
threats of serious injury.”
Due, in part, to the local police’s claimed unwillingness to
pursue complaints against the Bay Boys, the individual plaintiffs
and other would-be surfers who allegedly were harassed by the
Bay Boys were often unable to identify the specific individuals
who harassed them. As a result, certain allegations of the
complaint simply name the “Individual Defendants,” a
designation which includes Thiel and Mowat. For example, the
complaint alleges that, “Individual Defendants intimidate
visiting beachgoers with threats and taunts, by taking photos and
video of beachgoers, and by congregating near the entrances to
both [trails to the beach].” The complaint also alleges a
conspiracy amongst the Bay Boys: “For many years, The Bay
Boys have conspired to commit wrongful acts for the purpose of
keeping outsiders from coming to Lunada Bay. The agreements
between the individual members of the Bay Boys are made orally,
in writing, and are implied by the conduct of the parties.”
4
The causes of action alleged against the Bay Boys and its
individual members (including Mowat and Thiel) include public
nuisance, assault and battery.2
B. Specific Allegations Against Appellants
The allegations against Mowat and Thiel are that, as
members of the Bay Boys and “Individual Defendants,” they
participated in the conspiracy. However, thanks to discovery in a
related federal action, plaintiffs obtained records of some text
messages among Bay Boys, and, based on those messages, made
some specific allegations regarding participation in the
conspiracy.3 Some of those allegations specifically related to
Mowat and Thiel.
2 As we shall discuss, civil conspiracy is not itself a tort, but
a theory which “ ‘fastens liability on those who agree to the plan
to commit the wrong as well as those who actually carry it out.’
[Citation.]” (Stueve Bros. Farms, LLC v. Berger Kahn (2013)
222 Cal. App. 4th 303, 323.) The Bay Boys, including Mowat and
Thiel, are alleged to be liable in conspiracy for nuisance, assault,
and battery, as well as violations of the California Coastal Act
(Pub. Resources Code, §§ 30000 et seq.) and the Bane Act (Civ.
Code, § 52.1). The parties do not address the merits of the
statutory causes of action further, nor do we.
3 The same plaintiffs had filed a federal class action against
the Bay Boys and the City. The district court granted summary
judgment to the City on the federal claims and declined to assert
supplemental jurisdiction on the state law claims. The plaintiffs
appealed the district court judgment, an appeal that is
apparently still pending. Plaintiffs, meanwhile, filed the current
action in state court.
5
(1) January 20, 2014 Harassment of Christopher
Taloa – Mowat Involvement
On January 20, 2014, Martin Luther King Day, a surfer
named Christopher Taloa planned a peaceful event to bring
multiple non-local surfers to Lunada Bay to open the bay for
everyone. The Lunada Bay Boys learned about Taloa’s plans,
and coordinated through text messages to harass Taloa and his
fellow surfers. Mowat was part of the group, texting, “I will be on
the patio allllllllllll day on Monday throwing out heckles and
sporting a BBQ. I’m already warming up.” Mowat texted
another to say, “[h]ope you’re off Monday for the fiasco. I’m going
to sponsor a BBQ and be on the patio all day.” When Taloa went
into Lunada Bay to surf, he was surrounded by Bay Boys who
kicked him, taunted him, splashed water in his face, and
harassed him. One man, wearing blackface and sporting an afro
wig told him, “You don’t pay enough taxes to be here.”
(2) January 29, 2016 Harassment of Plaintiff
Spencer – Mowat Involvement
Two years later, on January 29, 2016, Mowat was involved
in another act of harassment. That day, when plaintiff Spencer
was spotted at Lunada Bay, several individuals, including
Mowat, exchanged text messages to bring a crowd of Bay Boys to
the bay. Specifically, one of the Bay Boys texted, “The kook is
here at the bay right now,” and Mowat responded, “On my
way!!!!” Once there, Mowat texted, “He’s in the water. Only five
guys out. Get down here boys. I’m out there.”
Spencer was told by the Bay Bays, “You can’t surf here,
kook.” When Spencer was in the water, one of the Bay Boys
intentionally ran over Spencer with his surfboard, slicing his
hand open.
6
That same day, plaintiff Miernik also went to surf Lunada
Bay. She was threatened by Bay Boy David Melo, who screamed
at her that she would get hurt if she stayed. This was overheard
by a City police officer, who briefly detained Melo.
(3) February 5, 2016 Further Harassment of Taloa,
Spencer and Miernik – Mowat and Thiel
Involvement
On February 5, 2016, Taloa, Spencer and Miernik returned
to Lunada Bay with some friends. Mowat texted three other Bay
Boys, including Thiel, “Surf looks like it could get epic today.
There’s five kooks standing on top of the trail with their own
personal photographer taking pictures of them posing. I thinks
it’s the same Taloa crew. This could get ugly today. We all need
to surf.” Mowat followed up, confirming, “It’s definitely Taloa.”
One of the Bay Boys whom Mowat had messaged responded to
the scene. He circled the non-local group with a video camera,
following Taloa along the bluffs, while others called Spencer
names.
A few hours later, Mowat wrote the others, again including
Thiel, stating, “Too bad this bitch that called the cops on [David
Melo] is such a cunt. She sure has a great rack and ass!” Thiel
replied, “Fuck . . . she’s still down there???!” Mowat said, “No,
they are all gone. Ghost town Lunada. Just had an epic sess
with just Sandoval out.” Thiel said, “Saw u get a couple good
ones! Good crew down now – Leo, Clyde, Gabron, Chad. . . .”
Mowat said, “Yep, business as usual. That patio is in good form.”
Thiel ended the exchange with, “Right on . . . .”
7
(4) The February 13, 2016 Aborted Police Sting
and Harassment of Miernik – Thiel
Involvement
From time to time, Lunada Bay and its reputation for
localism made the news. In December 2015, the City Police Chief
was quoted in the Los Angeles Times as intending to add patrols
to the coast and make the first arrest in years of one of the
assailants. The Bay Boys were, unsurprisingly, not happy with
the idea of increased enforcement. In February 2016, Thiel
coordinated a letter-writing campaign to the City, telling the
others to write calmly and rationally to express their outrage at
the chief’s behavior.
Evidence submitted in connection with the anti-SLAPP
motion would later reveal that in January 2016, at a meeting
with other local police chiefs, it was agreed that police officers
from other departments would help the City in a sting operation,
which was planned for February 13, 2016. Plaintiffs’ complaint
alleged that, the day before the planned sting, Thiel met with the
City Manager to discuss his complaints regarding policing. Thiel
told the City Manager that he was aware an undercover
operation was scheduled at Lunada Bay for the following day,
and stated that they better not be doing it then. The City
Manager called the Police Chief, who cancelled the undercover
operation.
On February 13, 2016, the date previously set for the now-
cancelled sting operation, there was no enforcement at all at
Lunada Bay. That day, plaintiff Miernik returned to the bay
with a friend. Bay Boys called her a bitch and a liar. One of
them shook up a beer and sprayed it on her. Others filmed her;
she asked them to stop, but they replied that she was sexy and
excited them. One said she made him “excited” and “hard,”
8
which makes it easier to get into his wetsuit; he then changed
into his wetsuit, exposing himself to her.
2. The Anti-SLAPP Motions
An anti-SLAPP motion presents a means by which a
defendant, sued for conduct in furtherance of the constitutional
right of petition or free speech, can require a plaintiff to establish
that there is a probability of prevailing on the claim or face early
dismissal of the action. If the defendant first establishes a prima
facie showing that a claim is based on so-called “protected
activity,” the burden switches to the plaintiff to establish the
lawsuit has at least minimal merit. (Park v. Board of Trustees of
California State University (2017) 2 Cal. 5th 1057, 1061 (Park).)
Thiel and Mowat each filed anti-SLAPP motions, as did
another defendant, Paul Hugoboom. Hugoboom’s motion is not
part of the record on appeal; it would become relevant, however,
because Mowat’s motion contained no independent argument, but
simply joined Thiel’s and Hugoboom’s motions. Mowat’s motion
was a joinder in Thiel’s and Hugoboom’s, and Mowat has chosen
not to include Hugoboom’s motion as part of the record on appeal.
Thus, Mowat’s legal position on appeal is restricted by the
arguments raised by Thiel in the trial court.4
A. Thiel’s Supporting Declaration
In Thiel’s motion, he argued that the complaint against him
was based on protected activity because it was founded on his
letter writing campaign and his conversation with the City
Manager – acts in furtherance of his constitutional right to
petition. He supported the motion with his declaration, which
explained that he is “10-40 years older” than most of the other
4 Mowat’s opening and reply briefs on appeal first adopt the
“entirety of” Thiel’s briefs and then make additional legal points.
9
individual defendants and has “very little awareness of what goes
on in their lives beyond seeing them occasionally at Lunada Bay
or other local beaches.” He explained that he had been
“increasingly concerned by the actions of some of the people
visiting Lunada Bay. In addition to the plaintiffs in this matter,
who seemed completely focused on generating publicity for
themselves at the community’s expense, the neighborhood was
also being visited by individuals doing such things as
photographing people and license plates and screaming
obscenities at anyone they thought might be a ‘bay boy.’ All the
while, the then-police chief seemed more interested in arresting a
‘bay boy’ than in keeping the peace. It seemed to me that the
then-police chief had declared war on the community for his own
gain in the form of positive press coverage. Based on my
concerns, I wrote a letter to my elected officials and encouraged
others to do the same.” Similarly, Thiel explained that he met
with the City Manager to discuss his belief that the City was
misusing local resources in going after the local surfing
community. He specifically denied having known about the
planned police sting and disputed talking to the City Manager
about it.
As to his participation in the group text messages, Thiel
stated that he was not part of any coordinated campaign to
harass Miernik and others; he simply believed that they were
trying to manufacture incidents for their own gain and he
expressed his relief when he learned they had left Lunada Bay.
B. Mowat’s Joinder
Mowat joined Thiel’s motion, explaining that he, too, is
being sued for communicating with the City Manager and other
residents on a matter of public controversy. He filed no evidence
in support of his motion.
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3. Plaintiffs’ Opposition
In their opposition to Thiel’s motion, plaintiffs argued in no
uncertain terms that their complaint was based on acts of
harassment and threats of violence, not the petitioning activity
highlighted in Thiel’s motion. They explained, “Thiel is not a
Defendant because he talked to the City Manager or told his gang
of friends to write letters. To the contrary, he conspired to
harass, assault, batter, and intimidate visitors to the beach; this
is the gravamen of Plaintiffs’ complaint.” According to plaintiffs,
the petitioning activity was simply evidence of the underlying
conspiracy. Plaintiffs believed that Thiel manipulated the City
Manager into calling off the sting so that the Bay Boys would be
free to harass beachgoers the next day – as they did, including
the sexual harassment of plaintiff Miernik – but the principal
thrust of the complaint was the actual harassment.
In opposing Mowat’s motion, plaintiffs emphasized that
Mowat failed to identify allegations of his own protected activity
as the basis for his motion.
Plaintiffs supported their opposition with numerous
declarations from surfers who had been harassed and attacked by
the Bay Boys over the years, as well as police reports and
newspaper stories documenting the Bay Boys’ campaign of
localism.5
5 The declarations had been filed in support of class
certification in the related federal case. Neither Mowat nor Thiel
objected to these declarations. One was from Michael Sisson, an
attorney who, in 1995, brought suit on behalf of a surfer who had
been attacked by the Bay Boys, sought a gang injunction against
them, and sued the City for Civil Rights violations.
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4. Replies
In reply, Thiel argued that the gravamen of the complaint
against him could not be harassment and threats of violence,
because plaintiffs presented no evidence that he did any of those
acts. Thus, he maintained, he was simply being sued for his
petitioning activity to the City Manager.
In Mowat’s reply, he, for the first time, addressed the
individual allegations against him in the complaint, and argued
that they were all based on protected activity.6 As to his
statements in the text messages apparently attempting to gather
the Bay Boys whenever non-locals were spotted at Lunada Bay,
Mowat argued that he was simply “planning to assemble with
other Defendants to counter-protest staged surfing protests.”
Mowat submitted no declaration or other evidence supporting
this interpretation of his text messages.
5. Hearing on Anti-SLAPP Motions
At the hearing, Thiel’s counsel again argued that the only
evidence against Thiel was that he met with the City Manager
and organized a letter-writing campaign. Plaintiffs’ counsel
again repeated that the gravamen of the complaint is a
conspiracy to intimidate and harass, not Thiel’s communications
with the City Manager or letter-writing campaign. Counsel
explained, “[W]e are not going after Mr. Thiel because he met
with the City Manager. That’s merely underlying evidence of
this overall conspiracy.”
In response to Mowat’s argument that he had simply been
arranging a counterprotest, plaintiffs’ counsel responded that the
allegations are that Mowat was not arranging a counterprotest
6 As for his involvement in building the rock fort, he stated
it, “does not negate the core allegations of protected activity and
should be ignored.”
12
but planning to intimidate non-locals with the other Bay Boys –
which, in some instances, led to the targeting of plaintiffs.
The trial court took the matter under submission.
6. Ruling and Appeal
The court’s order on the anti-SLAPP motion was part of a
minute order that included rulings on multiple submitted
matters. One of those matters was a demurrer for uncertainty –
which had been pursued by a number of defendants including
Mowat, but not Thiel. The court sustained the demurrer with
leave to amend to require plaintiffs to plead which defendant
committed which alleged underlying violation or tortious act
upon which conspiracy liability is sought to be based. In the
course of its discussion sustaining the demurrer with leave, the
court explained, “In the [operative complaint], Plaintiffs allege
that each of the Individual Defendants engaged in a conspiracy
dedicated to keeping the public away from Lunada Bay. As such,
the allegations that certain of the Individual Defendants
committed torts or other violations of California law within the
ambit of the alleged civil conspiracy may be sufficient to subject
all of the Individual Defendants to liability for such tortious
conduct. [Citation.]”
The court then denied the anti-SLAPP motions. As to
Thiel, the court concluded he was not being sued for his
communications with the City, but for being an active part in a
conspiracy to violate California law and commit tortious acts.
The court noted that Thiel was part of a group which coordinated
the February 5, 2016, harassment of plaintiff Spencer by text
message, and those texts are related to the alleged unlawful
conspiracy to prevent non-local surfers from using Lunada Bay.
“If found to be a conspirator, Thiel could be liable for the
wrongful and unlawful acts of his co-conspirators. Thus, the
13
communications with the City concerning Lunada Bay are not
the activity which gives rise to Thiel’s liability. As Plaintiffs
correctly note, the communications with the City Manager merely
serve to evidence the underlying conspiracy to illegally exclude
others from Lunada Bay through threats and violence.” Mowat’s
joinder in the anti-SLAPP motions was denied for similar
reasons.
Thiel and Mowat filed timely notices of appeal.
DISCUSSION
1. Law Governing Anti-SLAPP Motions and Standard of
Review
“Anti-SLAPP motions are evaluated through a two-step
process. Initially, the moving defendant bears the burden of
establishing that the challenged allegations or claims ‘aris[e]
from’ protected activity in which the defendant has engaged.
[Citations.] If the defendant carries its burden, the plaintiff must
then demonstrate its claims have at least ‘minimal merit.’
[Citations.]” (Park, supra, 2 Cal.5th at p. 1061.)
Before a court can proceed to the second prong, the moving
defendant must satisfy the first prong – that is, establish that the
cause of action arose from protected activity, as the term is
defined in the anti-SLAPP statute. Subdivision (e) is the
operative provision and describes four categories of protected
speech and conduct: “(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
14
interest, or (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 issue of public
interest.” (Code Civ. Proc., § 425.16, subds. (e)(1)-(e)(4).)
“We review de novo the grant or denial of an anti-SLAPP
motion. [Citation.] We exercise independent judgment in
determining whether, based on our own review of the record, the
challenged claims arise from protected activity. [Citations.] In
addition to the pleadings, we may consider affidavits concerning
the facts upon which liability is based. [Citations.] We do not,
however, weigh the evidence, but accept plaintiff’s submissions as
true and consider only whether any contrary evidence from the
defendant establishes its entitlement to prevail as a matter of
law. [Citation.]” (Park, supra, 2 Cal.5th at p. 1067.)
2. Thiel And Mowat Failed to Establish the First Prong
– That the Causes of Action Arise From Protected
Activity
“A claim arises from protected activity when that activity
underlies or forms the basis for the claim. [Citation.] Critically,
‘the defendant’s act underlying the plaintiff's cause of action must
itself have been an act in furtherance of the right of petition or
free speech.’ [Citations.]” (Park, supra, 2 Cal.5th at pp. 1062-
1063.) “To determine whether a claim arises from protected
activity, courts must ‘consider the elements of the challenged
claim and what actions by the defendant supply those elements
and consequently form the basis for liability.’ [Citation.] Courts
then must evaluate whether the defendant has shown any of
these actions fall within one or more of the four categories of
‘ “act[s]” ’ protected by the anti-SLAPP statute. [Citations.]”
(Wilson v. Cable News Network, Inc. (2019) 7 Cal. 5th 871, 884.)
15
Here, the causes of action against Thiel and Mowat are
pursued on a theory of conspiracy – conspiracy being a doctrine of
liability and not a cause of action itself. (AREI II Cases (2013)
216 Cal. App. 4th 1004, 1021.) “To establish conspiracy, a plaintiff
must allege that the defendant had knowledge of and agreed to
both the objective and the course of action that resulted in the
injury, that there was a wrongful act committed pursuant to that
agreement, and that there was resulting damage. [Citation.] A
conspiracy requires evidence that each member of the conspiracy
acted in concert and came to a mutual understanding to
accomplish a common and unlawful plan, and that one or more of
them committed an overt act to further it.’ [Citation.] Thus,
conspiracy provides a remedial measure for affixing liability to all
who have ‘agreed to a common design to commit a wrong’ when
damage to the plaintiff results. [Citation.]” (IIG Wireless, Inc. v.
Yi (2018) 22 Cal. App. 5th 630, 652.) “A participant in the
conspiracy ‘effectively adopts as his or her own the torts of other
coconspirators within the ambit of the conspiracy.’ [Citation.]”
(Navarrete v. Meyer (2015) 237 Cal. App. 4th 1276, 1291.) The
doctrine is one of vicarious liability; each member of the
conspiracy becomes liable for all acts done by others pursuant to
the conspiracy. (Ibid.)
The elements of liability under conspiracy are:
(1) formation and operation of the conspiracy; (2) wrongful
conduct in furtherance of the conspiracy; and (3) damages arising
from the wrongful conduct. (AREI II Cases, supra,
216 Cal.App.4th at pp. 1021-1022.) The plaintiff must establish
that the conspiring defendants knew of the wrongful plan, and
agreed, expressly or tacitly, to achieve it. (Id. at p. 1022.) Due to
the secret nature of conspiracies, their existence is often
inferentially and circumstantially derived from the character of
16
the acts done, the relations of the parties, and other facts and
circumstances suggestive of concerted action. (Ibid.)
In this case, plaintiffs sued Thiel and Mowat for public
nuisance, assault and battery—not necessarily for any acts of
nuisance, assault or battery which they personally may have
committed, but for acts committed by other Bay Boys with whom
Thiel and Mowat had allegedly conspired. The question
presented to us is: When a tort cause of action is asserted on a
conspiracy theory, which of the defendant’s alleged “acts” are
considered for the purposes of the first prong anti-SLAPP
analysis – the acts which constitute the tort itself, or the acts
which evidence the defendant’s participation in the conspiracy?
Thiel’s and Mowat’s anti-SLAPP motions are based on the
assumption that only the latter acts are considered. We disagree;
it is the tort itself that controls, not individual acts that
demonstrate the existence of a conspiracy.
Indeed, this conclusion is compelled by Park, which holds
“a claim may be struck only if the speech or petitioning activity
itself is the wrong complained of, and not just evidence of liability
or a step leading to some different act for which liability is
asserted.” (Park, supra, 2 Cal.5th at p. 1060.) When liability is
asserted for the target act of a conspiracy, the preliminary speech
or petitioning activity is simply evidence of the defendant’s
liability, not “the wrong complained of.”7
7 Thiel argues that Park should be read differently.
However, he supports his analysis by taking language from that
opinion out of context. In Park, the plaintiff alleged he was
wrongfully denied university tenure for discriminatory reasons.
The university filed an anti-SLAPP motion arguing that the
lawsuit was based on numerous communications that led up to,
and followed, the decision to deny him tenure, and that those
17
Richmond Compassionate Care Collective v. 7 Stars Holistic
Foundation, Inc. (2019) 32 Cal. App. 5th 458 (Richmond) is
illustrative. In that case, the plaintiff received a permit to open a
dispensary in the City of Richmond but was unable to obtain real
property on which to locate its dispensary. It brought suit
against competing dispensaries and their owners, alleging a
conspiracy to prevent plaintiff from obtaining any location for its
dispensary. Plaintiff alleged that the conspiracy involved
presenting phony real estate deals to lenders to tie up their
property, falsely telling property owners that their land would be
subject to federal forfeiture if they leased to plaintiff, and
threatening property owners to notify their lenders if they leased
to a dispensary. (Id. at p. 462.) Defendants brought an anti-
SLAPP motion, arguing that they were being sued for the
communications were protected activity. (Park, supra, 2 Cal.5th
at p. 1061.) The Supreme Court disagreed, concluding that
Park’s suit was based on the allegedly discriminatory denial of
tenure, not the communications. (Id. at pp. 1067-1068.) In the
course of its discussion, the court recognized prior authority
which held that claims against an employee acting as a grievance
officer for how she conducted the grievance hearing arose from
protected activity. (Id. at p. 1070.) The Park court cited this
conclusion favorably, noting that to deny protection would chill
employees from participating in the hearing process. (Id. at
pp. 1070-1071.) The Park court added, “[l]ikewise, to deny
protection to individuals weighing in on a public entity’s decision
might chill participation from a range of voices desirous of
offering input on a matter of public importance.” (Id. at p. 1071.)
But this language is of no assistance to Thiel, because it is not his
offering of input on a matter of public importance that is the
gravamen of the complaint against him. The gravamen is his
conspiring with other Bay Boys to harass, assault and batter
outside visitors to Lunada Bay.
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protected conduct of joining a political group to influence local
ordinances.8 (Id. at pp. 464-465.) The Court of Appeal disagreed,
concluding the essence of the complaint, “was the private actions
the group took to restrain trade and monopolize the medical
marijuana market in Richmond. That was the gravamen, the
thrust, of the cause of action. Whatever the protected activity, it
was at the most incidental. [Citations.]” (Id. at p. 470.)
To the same result is Novartis Vaccines & Diagnostics, Inc.
v. Stop Huntingdon Animal Cruelty USA, Inc. (2006)
143 Cal. App. 4th 1284 (Novartis). In that case, defendant opposed
animal testing performed at a lab used by plaintiff to test some of
its products. Defendant targeted certain of plaintiff’s employees
for “home visits,” which were, “terrifying incidents in which
persons broke employees’ windows, vandalized their cars, set off
ear-piercing alarms in their yards, and left excrement on their
doorsteps, as well as other tactics, including publication of
employees’ personal information on the internet and that of
employees’ spouses and children.” (Id. at p. 1288.) When
plaintiff sued, defendant filed an anti-SLAPP motion. To be sure,
the only conduct defendant itself was alleged to have committed
was posting the employees’ personal information on the internet;
plaintiffs pursued a theory that the defendant had ratified,
authorized, aided and/or abetted the unlawful home visits. (Id. at
pp. 1291-1292.) The trial court denied the anti-SLAPP motion,
concluding that the gravamen of the complaint was that
defendant was liable with its “coconspirators” for the home visits.
8 At the trial court hearing, defense counsel had argued, “But
what is actually in that complaint, though the basis for saying
that his – my client is liable is the joining of a group, a political
group.” (Id. at p. 465.)
19
(Id. at pp. 1295, fn. 2.) On appeal, the defendant again argued
the complaint was directed to its speech in connection with a
public issue. The plaintiff responded that the gravamen was not
speech, but the acts of harassment, intentional infliction of
emotional distress, intrusion and trespass occurring during the
“home visits” by unnamed individuals, for which defendant was
responsible under a conspiracy theory. (Id. at p. 1296.) The court
agreed with plaintiffs.9 (Ibid.)
9 The court also held that the “home visit” conduct was not
protected under the anti-SLAPP law because it was conclusively
established to be illegal as a matter of law, a point which the
defendant conceded. (Novartis, supra, 143 Cal.App.4th at
p. 1296.) The court went on to hold that statements in
furtherance of a conspiracy are also unprotected under the anti-
SLAPP law. (Id. at p. 1297.) Thiel attempts to distinguish
Novartis on the basis that, unlike the defendant in Novartis, he
did not concede that his conduct was illegal. But, again, Thiel is
focusing on the wrong conduct – he argues that his letter writing
campaign and discussion with the City Manager were not illegal.
The focus is not on Thiel’s conduct, but the alleged torts he is
accused of conspiring with his fellow Bay Boys to commit. At oral
argument on appeal, Thiel’s counsel conceded that the assaults
and batteries the Bay Boys were alleged to have committed were
illegal, but argued that Novartis is distinguishable because in
that case, the defendant conceded the illegality of both the home
visits and the publication of the employees’ names on the internet
– the alleged protect speech. We disagree with this
characterization of Novartis. The Novartis court explained,
“Here, the evidence conclusively establishes that the activities
described at length in the complaint, and about which there is no
dispute, are illegal as a matter of law. Indeed, [defendant] has
conceded that the attacks on [plaintiff’s] employees were
unlawful. [¶] Moreover, there is ample evidence that [defendant]
conspired with the demonstrators to commit these wrongful acts.”
(Id. at p. 1296.) The court went on to find that defendant’s
20
Independent research has disclosed one case that might be
considered at odds with Richmond and Novartis. In Contreras v.
Dowling (2016) 5 Cal. App. 5th 394, a tenant sued her landlord for
illegal entries into her apartment, and also sued the landlord’s
counsel for allegedly conspiring with the landlord to commit the
illegal entries. The landlord’s counsel pursued an anti-SLAPP
motion on the basis that the only conduct he allegedly committed
was the protected conduct of advising his clients in the course of
pending or threatened litigation. The Contreras court concluded
his anti-SLAPP motion should have been granted, agreeing that
the focus should be on the attorney’s conduct, not the illegal entry
that was the alleged object of the conspiracy. (Id. at pp. 399, 409-
410.) Contreras is distinguishable, both because it involved the
factual scenario of an attorney allegedly acting in concert with
his clients, and because the appellate court concluded the
plaintiff’s allegations of conspiracy were conclusory and alleged
nothing beyond the provision of routine legal services. (Id. at
p. 413.) Ignoring the defective conspiracy allegations, the court
analyzed separately the respective acts of the landlord and
attorney. It found the only acts alleged against counsel were in
advising his client, protected activity.
We believe Richmond and Novartis control here. In
determining the acts on which the causes of action against Thiel
and Mowat are based, we focus on the tortious acts in which they
are alleged to have conspired – the harassment of non-locals, the
trail-obstructing, the rock-throwing, the running over with
statements in furtherance of the conspiracy were not the sort of
speech the anti-SLAPP statute was designed to protect. (Id. at
p. 1297.) In other words, the conceded illegality of the target acts
of the conspiracy rendered the speech in furtherance of the
conspiracy unprotected.
21
surfboards, the punching, the theft, the vandalism, the sexual
harassment, the threats, and the intimidation. None of this is
protected speech or petitioning activity. That Thiel may have
also engaged in petitioning activity with the goal of assisting the
Bay Boys does not mean the complaint against him arises from
that activity. The conclusion is even stronger with respect to
Mowat, whose conduct, as alleged in the complaint, includes text
messages which appear to have solicited the assistance of fellow
Bay Boys in harassment. As such, the anti-SLAPP motion was
properly denied on the first prong.
DISPOSITION
The denial of the anti-SLAPP motions is affirmed. Thiel
and Mowat shall pay plaintiffs’ costs on appeal. Plaintiffs’
request for sanctions for pursuit of a frivolous appeal is denied.
RUBIN, P. J.
WE CONCUR:
MOOR, J.
KIM, J.
22