Marien v. Holland CA4/1

Filed 7/20/21 Marien v. Holland CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ROBIN MARIEN et al., D077586
Plaintiffs and Respondents,
(Super. Ct. No. 37-2015-
v. 00015685-CU-DF-CTL)
MARJORIE M. HOLLAND,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Kenneth J. Medel, Judge. Affirmed.
Marjorie Mae Holland, in pro. per., for Defendant and Appellant.
Shewry & Saldaña and Christopher C. Saldaña for Plaintiffs and
Respondents.
Robin Marien, Gabriel Jebb, and Air California Adventure, Inc. (ACA)
(together, Plaintiffs) filed a first amended complaint (FAC) alleging
defamation and other causes of action against defendant Robert Michael
Kuczewski and unnamed Doe defendants arising out of, inter alia, alleged
false statements regarding Plaintiffs’ operation of the Torrey Pines
Gliderport (TPG). In Marien v. Kuczewski (D069836, Sept. 28, 2017)
[nonpub. opn.] (Marien I), we affirmed the trial court’s order denying
Kuczewski’s motion to strike the FAC under Code of Civil Procedure1 section
425.16, the anti-SLAPP (strategic lawsuit against public participation)
statute. (Marien I, at pp. 21, 29.)
On remand, Plaintiffs filed a second amended complaint (SAC), which
added Holland as a named defendant in place of a Doe defendant, but did not
allege any new false statements regarding Plaintiffs. Holland then filed a
section 425.16 motion to strike the SAC. Applying our reasoning in Marien I,
the trial court denied Holland’s motion to strike, concluding, inter alia, that
none of the false statements alleged in the SAC were made in connection with
a public issue or an issue of public interest within the meaning of section
425.16, subdivision (e)(3) or (4). Holland appeals the order denying her
motion.
Based on our reasoning post, we conclude the court correctly denied
Holland’s anti-SLAPP motion.
FACTUAL AND PROCEDURAL BACKGROUND2
In July 2015, Plaintiffs filed the FAC, which alleged 33 causes of action
against Kuczewski, including 27 causes of action for defamation.3 The FAC
1 All statutory references are to the Code of Civil Procedure unless
otherwise specified.
2 The factual background is based on our opinion in Marien I, supra, at
pages 2 to 7, and the allegations set forth in the SAC. We begin by restating
our factual and procedural background discussion set forth in Marien I and
then supplement that discussion to reflect matters occurring after remand of
that case.
3 The FAC also alleged two causes of action for intentional interference
with prospective economic advantage, one cause of action for intentional
2
alleged that the TPG is located within the City of San Diego’s Torrey Pines
City Park and is used as a launching and landing space for hang gliding and
paragliding. Marien first became acquainted with Kuczewski over seven
years earlier when David Jebb, Gabriel Jebb’s father, was the principal
shareholder of ACA, which held the lease and concession for the TPG. The
TPG concessionaire is responsible for, inter alia, acting as the flight director
for hang gliding and paragliding activities on the premises. While David
Jebb was ACA’s principal shareholder, Kuczewski, for unknown reasons,
routinely screamed at, and/or otherwise harassed, David Jebb, his family,
ACA employees, and ACA students in the restricted area of the TPG where
pilots and tandem passengers were actively engaged in hang gliding or
paragliding. As a result, David Jebb banned him from the TPG.
In or about 2008, Marien became the principal shareholder of ACA and
lifted Kuczewski’s ban from the TPG. Gabriel Jebb (Jebb) is an employee of
ACA and works at the TPG as a tandem instructor. Kuczewski resumed and
elevated his vitriolic conduct by confronting and harassing ACA employees
and customers and making video recordings of Marien, Jebb, and other ACA
employees while they performed their job duties. He posted those video
recordings, which purportedly show ordinance or rule violations, on various
websites, including one (i.e., www.ushawks.org) that he apparently
originated and controls. He also posted on various websites video recordings
of his statements made before the City of San Diego City Council meetings
infliction of emotional distress, one cause of action for negligent infliction of
emotional distress, one cause of action for declaratory relief, and one cause of
action for injunctive relief.
3
criticizing Plaintiffs and their management of the TPG.4 The FAC alleged
that Kuczewski sought to convince the City Council to reinstate an advisory
board to provide oversight of Plaintiffs and the TPG, which board he
presumably would control, and thereby he would control the TPG’s flight
operations and ACA’s business. It also alleged Kuczewski solicited financing
to take over the TPG concession when the City of San Diego issues another
request for proposal to bid for that concession, thereby showing his true
motivation is to take the TPG concession away from ACA. The FAC alleged
the ultimate goal of Kuczewski’s defamatory statements and other actions
was to damage Plaintiffs, cause the City of San Diego to remove ACA as the
TPG’s concessionaire, and obtain the TPG concession for himself and/or his
hang gliding club (i.e., U.S. Hawks).
The FAC described a November 9, 2014, incident during which
Kuczewski yelled at Jebb for not wearing a helmet to “kite” while instructing
students.5 Kuczewski refused Jebb’s request that he move out of the TPG’s
restricted area to ensure the safety of the hang gliders and paragliders then
using that area. Plaintiffs then called the police to have Kuczewski arrested
for trespassing and removed from the premises. Also, on or about November
9, 2014, ACA and Marien revoked Kuczewski’s privileges to fly at, and
otherwise use the facilities of, the TPG for a period of one year.
4 The FAC stated that Plaintiffs do not seek to impose liability on
Kuczewski for defamation or other torts based on his statements at City
Council meetings, but instead on his subsequent posting on websites of video
recordings of those statements, along with other video recordings and
statements that did not originate at City Council meetings.
5 According to the FAC, “kiting” is a maneuver during which a paraglider
is inflated with air but does not leave the ground.
4
The predominant theme of the FAC’s allegations was that Kuczewski
made defamatory statements asserting that Plaintiffs bullied people at the
TPG, although the exact nature or circumstances of such alleged bullying was
oftentimes unclear in the FAC.6 Kuczewski’s other alleged defamatory
statements included assertions that Plaintiffs are thugs and corrupt, and
may be responsible, in part, for the suicide of a woman who had been bullied
at the TPG.
Kuczewski filed a motion to strike the FAC pursuant to section 425.16,
arguing that each of the FAC’s causes of action arose from his exercise of his
right to free speech, his statements concerned public issues, and Plaintiffs
could not show a probability they would prevail on the merits of the case.
Plaintiffs opposed the motion, arguing Kuczewski had not shown their causes
of action arose out of his exercise of his right to free speech in connection with
a public issue (i.e., § 425.16 protected conduct) and, in any event, they
showed there was a probability they would prevail on the merits of each of
the FAC’s causes of action.
On January 8, 2016, the trial court issued a minute order denying
Kuczewski’s section 425.16 motion to strike the FAC, stating:
“Assuming that the allegations fall within protected
activity under . . . [section] 425.16[, subd.] (e) as
[Kuczewski] avers, the Court finds that [P]laintiffs have . . .
established [a] probability of prevailing on the claims.
[Citation.] The allegations in this case are not based upon
publications made while [Kuczewski] appeal[ed] [to] the
City Council[.] Instead, the allegations are based upon
internet and other publications of factual assertions
6 For example, on one video recording that Kuczewski posted on a
website, he spoke to the City Council regarding one incident at the TPG
during which he “thought about all the times that David Jebb and Gabe Jebb
and Robin Marien had bullied people and threatened them with arrest.”
5
involving [Kuczewski]. . . . The evidence shows that
[Kuczewski] made allegations of fact that [P]laintiffs assert
are false. [Citation.] . . . .”
Kuczewski appealed the order denying his section 425.16 motion.
In Marien I, we affirmed the order denying Kuczewski’s section 425.16
motion to strike, concluding, inter alia, that none of the 33 causes of action
alleged in the FAC arose out of any statements or other conduct in connection
with any public issue or issue of public interest within the meaning of section
425.16, subdivision (e)(3) or (4).7 (Marien I, supra, at pp. 15-21, 29.)
On remand after Marien I, Plaintiffs filed the SAC, which added
Holland as a defendant in place of a Doe defendant on 32 of its 33 causes of
action, which remained substantially the same as in the FAC. The factual
allegations specifically made regarding Holland are primarily set forth in
paragraph 7 of the SAC, which alleges:
“7. HOLLAND has at the direction and special insistence
of [Kuczewski], or with his permission or acquiescence, or
both, caused to be posted to the Internet, as more fully set
forth below, several videos of [Kuczewski] making
statements about the [Plaintiffs], and each of them, that he
and HOLLAND knew, or had reason to know, were false
and injurious to [Plaintiffs’] reputations and business.
HOLLAND has, acting in concert with [Kuczewski], caused
to be published these defamatory statements with the
intent of interfering with the business of [Plaintiffs], and
each of them, or in reckless disregard of the knowledge that
publication of such statements would interfere with
[Plaintiffs’] businesses and cause them economic harm and
emotional distress. HOLLAND often identifies herself on
the Internet as ‘Majiemae.’ ”
7 We also concluded that Kuczewski had not alternatively shown his
alleged false statements were protected activity under section 425.16,
subdivision (e)(1) or (2). (Marien I, supra, at pp. 19-20.)
6
Holland filed a section 425.16 motion to strike the SAC, arguing that
each of the 32 causes of action alleged against her arose from the exercise of
her right to free speech, her statements concerned public issues, and
Plaintiffs could not show a probability they would prevail on the merits of the
case. Plaintiffs opposed her anti-SLAPP motion, arguing that none of the
false statements alleged in the SAC were protected activity under section
425.16, subdivision (e).
On February 21, 2020, the court issued a minute order denying
Holland’s anti-SLAPP motion, stating in part: “The Court of Appeal, in Case
No. D069836, in the context of Kuczewski’s claimed protection under the
Anti-SLAPP law, ruled that the activity alleged [in the FAC] was not
protected activity [under section 425.16, subdivision (e)].” Although the court
rejected Plaintiffs’ argument that the doctrine of collateral estoppel applied to
bar Holland from relitigating our decision in Marien I, it nevertheless found
our reasoning in Marien I persuasive and concluded that none of the false
statements alleged in the SAC were protected activity under section 425.16,
subdivision (e).
Holland timely filed a notice of appeal challenging the order.
DISCUSSION
I
Anti-SLAPP Motions Generally
A SLAPP “is a civil lawsuit that is aimed at preventing citizens from
exercising their political rights or punishing those who have done so. ‘ “While
SLAPP suits masquerade as ordinary lawsuits such as defamation and
interference with prospective economic advantage, they are generally
meritless suits brought primarily to chill the exercise of free speech or
petition rights by the threat of severe economic sanctions against the
7
defendant, and not to vindicate a legally cognizable right.” ’ ” (Simpson
Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21.) Section 425.16, the
anti-SLAPP statute, “was enacted in 1992 for the purpose of providing an
efficient procedural mechanism to obtain an early and inexpensive dismissal
of nonmeritorious claims ‘arising from any act’ of the defendant ‘in
furtherance of the person’s right of petition or free speech under the United
States or California Constitution in connection with a public issue . . . .’
(§ 425.16, subd. (b)(1).)” (Martinez v. Metabolife Internat., Inc. (2003) 113
Cal.App.4th 181, 186.)
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 Constitution 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.” (Italics added.)
A two-step process applies in deciding an anti-SLAPP motion. “First, the
court decides whether the defendant has made a threshold showing that the
challenged cause of action is one arising from protected activity. The moving
defendant’s burden is to demonstrate that the act or acts of which the
plaintiff complains were taken ‘in furtherance of the [defendant’s] right of
petition or free speech under the United States or California Constitution in
connection with a public issue,’ as defined in the statute. (§ 425.16, subd.
(b)(1).) If the court finds such a showing has been made, it then determines
whether the plaintiff has demonstrated a probability of prevailing on the
claim.” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67
(Equilon).) “Only a cause of action that satisfies both prongs of the anti-
8
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.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89 (Navellier).)
Under the first step, the defendant has the initial burden to show that
the claims arose from his or her protected activity. (Equilon, supra, 29Cal.4th at p. 67.) In deciding whether the defendant has met that burden, a
court considers “whether the plaintiff’s cause of action itself was based on an
act in furtherance of the defendant’s right of petition or free speech.” (City of
Cotati v. Cashman (2002) 29 Cal.4th 69, 78, italics added.) The court’s focus
is not the form of the cause of action or claim, “but, rather, the defendant’s
activity that gives rise to his or her asserted liability—and whether that
activity constitutes protected speech or petitioning.” (Navellier, supra, 29
Cal.4th at p. 92.) “The Legislature spelled out the kinds of activity it meant
to protect in section 425.16, subdivision (e): ‘As used in this section, “act in
furtherance of a person’s right of petition or free speech under the United
States or California Constitution in connection with a public issue” includes:
(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 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 an
issue of public interest.’ ” (City of Montebello v. Vasquez (2016) 1 Cal.5th 409,
422 (City of Montebello).)
9
“Because of these specifications, courts determining whether a cause of
action arises from protected activity are not required to wrestle with difficult
questions of constitutional law, including distinctions between federal and
state protection of free expression. ‘The only means specified in section
425.16 by which a moving defendant can satisfy the requirement is to
demonstrate that the defendant’s conduct . . . falls within one of the four
categories described in subdivision (e), defining subdivision (b)’s phrase, “act
in furtherance of a person’s right of petition or free speech under the United
States or California Constitution in connection with a public issue.” ’ ” (City
of Montebello, supra, 1 Cal.5th at p. 422.) Thus, “courts determining whether
conduct is protected under the anti-SLAPP statute look not to First
Amendment law, but to the statutory definitions in section 425.16,
subdivision (e).” (Ibid.)
The California Supreme Court recently clarified the applicability of the
anti-SLAPP statute to mixed causes of action. (Baral v. Schnitt (2016) 1
Cal.5th 376, 392-396 (Baral).) Baral stated: “[A]n anti-SLAPP motion, like a
conventional motion to strike, may be used to attack parts of a count as
pleaded.” (Id. at p. 393.) Accordingly, “courts may rule on plaintiffs’ specific
claims of protected activity, rather than reward artful pleading by ignoring
such claims if they are mixed with assertions of unprotected activity.” (Ibid.)
Construing the anti-SLAPP statute’s use of the term “cause of action” to
mean a claim arising from protected activity, Baral stated:
“When the Legislature declared that a ‘cause of action’
arising from activity furthering the rights of petition or free
speech may be stricken unless the plaintiff establishes a
probability of prevailing, it had in mind allegations of
protected activity that are asserted as grounds for relief.
The targeted claim must amount to a ‘cause of action’ in the
sense that it is alleged to justify a remedy. By referring to
a ‘cause of action against a person arising from any act of
10
that person in furtherance of’ the protected rights of
petition and speech, the Legislature indicated that
particular alleged acts giving rise to a claim for relief may
be the object of an anti-SLAPP motion. (§ 425.16, subd.
(b)(1) . . . .) Thus, in cases involving allegations of both
protected and unprotected activity, the plaintiff is required
to establish a probability of prevailing on any claim for
relief based on allegations of protected activity. Unless the
plaintiff can do so, the claim and its corresponding
allegations must be stricken.” (Baral, supra, 1 Cal.5th at
p. 395.)
“To avoid confusion,” Baral referred to “the proper subject of a special motion
to strike as a ‘claim,’ a term that also appears in section 425.16[, subd.]
(b)(1).” (Baral, supra, 1 Cal.5th at p. 382.)
Baral also clarified, however, that “[a]ssertions [involving protected
conduct] that are ‘merely incidental’ or ‘collateral’ are not subject to section
425.16.” (Baral, supra, 1 Cal.5th at p. 394.) In discussing protected acts that
are incidental to the plaintiff’s claims for relief, Baral cited Wallace v.
McCubbin (2011) 196 Cal.App.4th 1169, in which the court stated at page
1183: “For purposes of anti-SLAPP analysis, . . . an alleged act is incidental
to a claim, and incidental to any unprotected activity on which the claim is
based, only if the act is not alleged to be the basis for liability.” (Baral, at
p. 394.) Wallace, in turn, cited Scott v. Metabolife Internat., Inc. (2004) 115
Cal.App.4th 404, at pages 414 to 417, in which the court concluded that the
defendant’s advertising conduct was merely incidental to its manufacturing
and sales conduct that was the basis for plaintiff’s claims for relief. (Wallace,
at p. 1183; see also Peregrine Funding, Inc. v. Sheppard Mullin Richter &
Hampton LLP (2005) 133 Cal.App.4th 658, 672 [protected conduct that is
merely incidental to unprotected conduct is not subject to anti-SLAPP
statute]; Gallimore v. State Farm Fire & Casualty Ins. Co. (2002) 102
11
Cal.App.4th 1388, 1399 [anti-SLAPP statute does not apply when defendant’s
alleged protected conduct is merely evidence supporting plaintiff’s claims for
relief and does not constitute the alleged wrongful conduct itself].) Baral
further noted that “[a]llegations of protected activity that merely provide
context, without supporting a claim for recovery, cannot be stricken under
the anti-SLAPP statute.” (Baral, at p. 394.) Thus, at the first step of the
anti-SLAPP analysis, a court determines whether a complaint’s allegations of
protected conduct are the basis for a claim for relief or, instead, are incidental
or collateral to, or merely provide context for, a claim for relief based on
unprotected conduct.
On appeal from an order denying an anti-SLAPP motion, “[w]e
independently review the record to determine whether the asserted causes of
action arise from the defendant’s free speech or petitioning activity, and, if so,
whether the plaintiff has shown a probability of prevailing.” (City of
Alhambra v. D’Ausilio (2011) 193 Cal.App.4th 1301, 1306.)
II
Denial of Holland’s Section 425.16 Motion to Strike the SAC
Holland contends the trial court erred by denying her section 425.16
motion to strike the SAC. She asserts she met her burden under the first
step of the anti-SLAPP analysis to show the SAC’s causes of action arose out
of conduct protected by section 425.16 and Plaintiffs did not meet their
burden under the second step to show there was a probability they would
prevail on the merits of those causes of action. In particular, she asserts the
alleged defamatory statements and other alleged actions were made in
12
connection with a public issue or an issue of public interest within the
meaning of section 425.16, subdivision (e)(3) or (4).8
A. Collateral Estoppel Does Not Apply
In their respondents’ brief, Plaintiffs argue that we should apply the
doctrine of collateral estoppel and conclude she is bound by our decision in
Marien I because she is in privity with Kuczewski. The doctrine of collateral
estoppel “precludes relitigation of issues argued and decided in prior
proceedings.” (Teitelbaum Furs, Inc. v. Dominion Ins. Co. (1962) 58 Cal.2d
601, 604.) In Lucido v. Superior Court (1990) 51 Cal.3d 335, the court set
forth five requirements for application of the doctrine of collateral estoppel,
stating: “First, the issue sought to be precluded from relitigation must be
identical to that decided in a former proceeding. Second, this issue must
have been actually litigated in the former proceeding. Third, it must have
been necessarily decided in the former proceeding. Fourth, the decision in
8 On December 30, 2020, Holland filed a motion to augment the record
with copies of four “screenshots” from websites that Kuczewski, acting in pro
per, offered on her behalf in the trial court, but were not filed or lodged with
the court. On January 19, 2021, we issued an order stating that we would
consider Holland’s motion to augment concurrently with this appeal.
Because those documents were not filed or lodged with the trial court, they
were not made part of the trial court record and we therefore deny her motion
to augment the record. (Cal. Rules of Court, rule 8.155(a)(1)(A).)
On February 19, 2021, Plaintiffs filed a motion requesting that we take
judicial notice of two exhibits, namely Exhibits A and B. Exhibit A is a
highlighted copy of Holland’s opening brief and Exhibit B is a copy of
Kuczewski’s opening brief that was submitted in Marien I. On March 11,
2021, we issued an order stating that we would consider Plaintiffs’ request
for judicial notice concurrently with this appeal. We now exercise our
discretion and deny Plaintiffs’ request for judicial notice of the two exhibits
and therefore disregard any references to them in their respondents’ brief.
(Cf. Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
13
the former proceeding must be final and on the merits. Finally, the party
against whom preclusion is sought must be the same as, or in privity with,
the party to the former proceeding. [Citations.]” (Id. at p. 341.)
Assuming arguendo that Lucido’s first four requirements for
application of the doctrine of collateral estoppel have been satisfied, we
nevertheless conclude, as did the trial court post, that Plaintiffs have not
carried their burden to show that Holland is in privity with Kuczewski. “The
concept of privity for the purposes of res judicata or collateral estoppel refers
‘to a mutual or successive relationship to the same rights of property, or to
such an identification in interest of one person with another as to represent
the same legal rights [citations] and, more recently, to a relationship between
the party to be estopped and the unsuccessful party in the prior litigation
which is “sufficiently close” so as to justify application of the doctrine of
collateral estoppel. [Citations.]’ ” (Citizens for Open Access etc. Tide, Inc. v.
Seadrift Assn. (1998) 60 Cal.App.4th 1053, 1069-1070 (Citizens for Open
Access).) “A party is adequately represented for purposes of the privity rule
‘if his or her interests are so similar to a party’s interest that the latter was
the former’s virtual representative in the earlier action.’ ” (Id. at p. 1070)
“We measure the adequacy of ‘representation by inference, examining
whether the . . . party in the suit which is asserted to have a preclusive effect
had the same interest as the party to be precluded, and whether that . . .
party had a strong motive to assert that interest.’ ” (Id. at p. 1071.)
Contrary to Plaintiffs’ implicit assertion, the fact that Holland’s
opening brief, filed in propria persona, repeated (or, in Plaintiffs’ terminology,
“appropriated”) many of the arguments previously made by Kuczewski’s
appellate counsel in his opening brief in Marien I does not show they had a
mutual, or sufficiently close, relationship such that Kuczewski represented
14
Holland’s legal rights or interests in Marien I. (Citizens for Open Access,
supra, 60 Cal.App.4th at pp. 1069-1070.) Furthermore, contrary to Plaintiffs’
assertion, any representation by Holland’s trial counsel that Kuczewski and
Holland were engaged in a joint defense does not show that Kuczewski
represented Holland’s interests in Marien I. In particular, assuming
arguendo that Kuczewski and Holland are jointly defending the SAC,
Holland was not added as a defendant until after remand of Marien I and, in
any event, the fact that codefendants may collaborate in their defense of an
action does not show they have a sufficiently close relationship for purposes
of applying the doctrine of collateral estoppel. Plaintiffs do not cite, and we
are unaware of, any apposite case supporting their argument. Because
Plaintiffs have not carried their burden to show that Holland is in privity
with Kuczewski, we conclude the doctrine of collateral estoppel does not
apply to bar Holland from purportedly “relitigating” issues that we decided in
Marien I.
B. Issue of Public Interest Generally
Section 425.16, subdivision (e)(3) and (4) define acts made “in
connection with a public issue” that are protected by the anti-SLAPP statute
as including statements made in connection with “an issue of public interest.”
“The definition of ‘public interest’ within the meaning of the anti-SLAPP
statute has been broadly construed to include not only governmental matters,
but also private conduct that impacts a broad segment of society and/or that
affects a community in a manner similar to that of a governmental entity.”
(Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479.)
“Although matters of public interest include legislative and governmental
activities, they may also include activities that involve private persons and
entities, especially when a large, powerful organization may impact the lives
15
of many individuals.” (Church of Scientology v. Wollersheim (1996) 42
Cal.App.4th 628, 650.)
Section 425.16 “does not provide a definition for ‘an issue of public
interest,’ and it is doubtful an all-encompassing definition could be provided.
However, the statute requires that there be some attributes of the issue
which make it one of public, rather than merely private, interest. A few
guiding principles may be derived from decisional authorities. First, ‘public
interest’ does not equate with mere curiosity. [Citations.] Second, a matter
of public interest should be something of concern to a substantial number of
people. [Citation.] Thus, a matter of concern to the speaker and a relatively
small, specific audience is not a matter of public interest. [Citations.] Third,
there should be some degree of closeness between the challenged statements
and the asserted public interest [citation]; the assertion of a broad and
amorphous public interest is not sufficient [citation]. Fourth, the focus of the
speaker’s conduct should be the public interest rather than a mere effort
‘to gather ammunition for another round of [private] controversy . . . .’
[Citation.] Finally, ‘those charged with defamation cannot, by their own
conduct, create their own defense by making the claimant a public figure.’
[Citation.] A person cannot turn otherwise private information into a matter
of public interest simply by communicating it to a large number of people.”
(Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1132-1133.)
Cases that have addressed the question of whether alleged wrongful
statements were made in connection with a public issue or an issue of public
interest have focused on whether those statements “either concerned a person
or entity in the public eye [citations], conduct that could directly affect a large
number of people beyond the direct participants [citations] or a topic of
widespread, public interest [citation].” (Rivero v. American Federation of
16
State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th
913, 924 (Rivero).) On the latter factor, “it is not enough that the statement
refer to a subject of widespread public interest; the statement must in some
manner itself contribute to the public debate.” (Wilbanks v. Wolk (2004) 121
Cal.App.4th 883, 898.) For example, comments on the business practices of a
plaintiff that is not in the public eye and do not affect a large number of
people are not a topic of widespread public interest. (Ibid.) However,
consumer information that affects a large number of persons is generally
viewed as information concerning a matter of public interest. (Ibid.)
Furthermore, “in order to satisfy the public issue/issue of public
interest requirement of section 425.16, subdivision (e)(3) and (4) of the anti-
SLAPP statute, in cases where the issue is not of interest to the public at
large, but rather to a limited, but definable portion of the public (a private
group, organization, or community), the constitutionally protected activity
must, at a minimum, occur in the context of an ongoing controversy, dispute
or discussion, such that it warrants protection by a statute that embodies the
public policy of encouraging participation in matters of public significance.”
(Du Charme v. International Brotherhood of Electrical Workers (2003) 110
Cal.App.4th 107, 119, fn. omitted.)
C. No Public Issue or Issue of Public Interest in This Case
Contrary to Holland’s assertion, we conclude none of the 32 causes of
action alleged against her in the SAC arise out of any statements or other
conduct in connection with any public issue or issue of public interest within
the meaning of section 425.16, subdivision (e)(3) or (4). Without specifically
addressing the allegations in each of the 32 causes of action alleged against
Holland in the 110-page SAC, we conclude that, to the extent the SAC’s
causes of action are based on Kuczewski’s and/or Holland’s statements about
17
Plaintiffs (e.g., defamation causes of action), those statements involved, at
most, a private controversy or dispute between Plaintiffs and Kuczewski
and/or Holland and not any public issue or issue of public interest.9 First,
none of the Plaintiffs were in the public eye. (Rivero, supra, 105 Cal.App.4th
at p. 924.) Neither the fact that ACA was the TPG’s concessionaire nor the
fact that Marien acted as its flight director made Plaintiffs public figures or
otherwise placed them in the public eye and Kuczewski’s and Holland’s
website postings alone could not place them in the public eye for anti-SLAPP
purposes. (Weinberg, supra, 110 Cal.App.4th at p. 1133 [defendants cannot,
by their own conduct, create their own defense to defamation causes of action
by making plaintiff a public figure].)
Second, the SAC’s allegations do not support Holland’s apparent
assertion that her alleged wrongful statements directly affected a large
number of people beyond the direct participants. (Rivero, supra, 105
Cal.App.4th at p. 924.) Rather, because her statements related primarily to,
or arose out of, incidents involving Plaintiffs and Kuczewski and/or a few of
his hang gliding acquaintances, they did not directly affect a large number of
people. Although Holland’s website postings of Kuczewski’s statements
presumably made them potentially accessible by a large number of people,
that potential accessibility does not, by itself, show those statements directly
affected a large number of people. (Weinberg, supra, 110 Cal.App.4th at
9 We note that the SAC’s declaratory relief and injunctive relief causes of
action do not involve any speech or other purported protected conduct by
Kuczewski or Holland, thereby clearly precluding her satisfaction of the first
step of the anti-SLAPP analysis without our need to address whether they
involved an issue of public interest.
18
p. 1133 [defendants cannot turn otherwise private information into a matter
of public interest simply by communicating it to a large number of people].)
The SAC does not allege that Holland’s website statements were viewed by
thousands of persons or that such statements directly affected those viewers.
“[A] matter of concern to the speaker and a relatively small, specific audience
is not a matter of public interest.” (Id. at p. 1132.) In this case, there is
nothing alleged in the SAC showing Kuczewski’s and/or Holland’s dispute
with Plaintiffs regarding their operation of the TPG was a matter of concern
to persons other than Kuczewski, Holland, and the presumably small number
of hang gliders in the U.S. Hawks hang gliding organization and/or those
persons directly interested in Kuczewski’s and Holland’s website postings
regarding Plaintiffs. (Cf. Weinberg, at pp. 1135-1136 [defendant’s publication
of defamatory statements accusing plaintiff of criminal conduct to relatively
small group of about 700 fellow token collectors was a private matter
furthering defendant’s campaign to discredit plaintiff and did not involve a
matter of public interest].)
Third, contrary to Holland’s assertion, her alleged wrongful statements
did not involve a topic of widespread, public interest, but instead involved a
private controversy or dispute between Plaintiffs and Kuczewski. Although,
as she argues, the alleged statements and incidents underlying them relate to
Plaintiffs’ operation of the TPG, which is part of a public park, and ACA’s
rent-free lease of the TPG premises from the City of San Diego, those
circumstances do not necessarily show those statements involved a topic of
widespread, public interest. The alleged statements show Kuczewski and/or
Holland are highly critical of the manner in which Plaintiffs operate the TPG.
However, there is nothing in the SAC’s allegations showing that criticism has
become a topic of widespread, public interest. In particular, although
19
Kuczewski regularly spoke at City Council meetings regarding incidents that
occurred at the TPG and Plaintiffs’ purported mismanagement of its
operations and he and/or Holland subsequently posted video recordings of
those statements, none of his statements at those meetings apparently were
made during the City Council’s agenda items, but instead were made during
the period for comments by the general public on nonagenda issues. Neither
Kuczewski’s statements at City Council meetings regarding the operations of
the TPG nor his, nor Holland’s, subsequent posting of video recordings of
those statements made his statements topics of widespread, public interest.
(Rivero, supra, 105 Cal.App.4th at p. 924; Donovan v. Dan Murphy
Foundation (2012) 204 Cal.App.4th 1500, 1508-1509 [removal of member of
foundation’s board of directors did not involve an issue of public interest even
though foundation was one of largest charitable organizations in Southern
California and its donations to persons and entities affected millions of
persons].) Furthermore, there is an insufficient degree of closeness between
Kuczewski’s and/or Holland’s alleged defamatory statements and any
purported public interest. (Weinberg, supra, 110 Cal.App.4th at p. 1132.)
Based on our reading of the SAC’s allegations, the focus of Kuczewski’s
and/or Holland’s alleged statements was to further Kuczewski’s private
dispute with Plaintiffs and possibly obtain the TPG concession for himself
and/or members of his U.S. Hawks organization; it was not to further the
public interest. (Id. at pp. 1132-1133.) Accordingly, we conclude Kuczewski’s
alleged defamatory statements, as allegedly posted on websites by Holland,
were mere comments and/or criticism of Plaintiffs’ operation of the TPG and
other business practices, which statements arose out of a private controversy
or dispute or private interest and were not made in connection with any
public issue or issue of public interest. (Cf. Wilbanks, supra, 121 Cal.App.4th
20at p. 898 [defendant’s comments on plaintiffs’ business practices did not
affect a large number of people and was not a topic of widespread public
interest].)
To the extent Holland asserts that some of Kuczewski’s alleged
statements, as allegedly posted on websites by Holland, were made in
connection with issues of public interest because they constituted consumer
information affecting a large number of people, we conclude the premise of
that assertion is faulty. Although Kuczewski allegedly made statements,
inter alia, referring to Plaintiffs’ bullying of people at the TPG and various
accidents occurring there, any consumer information conveyed by those
statements was insignificant and merely incidental to the underlying private
purpose of those statements as alleged in the SAC (i.e., to further
Kuczewski’s private dispute with Plaintiffs and/or to obtain the concession for
the TPG for himself and/or members of his U.S. Hawks organization). To the
extent the SAC alleged Kuczewski made any statements conveying consumer
information that were later posted on websites by Holland, those purported
protected statements were merely incidental or collateral to Plaintiffs’ claims
for relief based on Kuczewski’s and Holland’s statements and other conduct
that was not protected by section 425.16. (Cf. Baral, supra, 1 Cal.5th at
p. 394 [assertions involving protected conduct that are merely incidental or
collateral are not subject to § 425.16].)
D. No Issue Under Consideration by a Legislative Body in This Case
We also reject Holland’s alternative assertion that Kuczewski’s alleged
defamatory statements, which she allegedly later posted on websites, were
made “before a legislative, executive, or judicial proceeding, or any other
official proceeding authorized by law” within the meaning of section 425.16,
subdivision (e)(1), or “in connection with an issue under consideration or
21
review by a legislative, executive, or judicial body, or any other official
proceeding authorized by law” within the meaning of section 425.16,
subdivision (e)(2). Although many of Kuczewski’s alleged defamatory
statements were made during the nonagenda public comment portion of city
council meetings, the SAC clearly alleged that Plaintiffs do not base their
claims for relief on his speech or other conduct during city council meetings,
but rather on Kuczewski’s and Holland’s conduct thereafter (e.g., posting
those statements on websites after city council meetings).10 Holland does
not cite, and we are unaware of, any case that holds defamatory statements
are forever protected by the anti-SLAPP statute if they are initially made
before a legislative body (e.g., city council) and thereafter repeated, or
“re-published,” by their declarants, or other persons, to people outside of a
legislative or other official proceeding (e.g., on websites). Because we cannot
conclude the Legislature intended section 425.16 to apply in that manner, we
reject Holland’s apparent assertion to that section 425.16, subdivision (e)(1)
or (2) applies to protect her alleged defamatory statements.
Because Holland did not carry her burden under the first step of the
anti-SLAPP analysis to show the SAC’s causes of action arose out of conduct
protected by section 425.16, we need not, and do not, address the question of
10 In paragraph 31 of the SAC, which by subsequent incorporation applied
to all of the causes of action alleged therein, Plaintiffs alleged: “For purposes
of clarity, Plaintiffs do not seek to impose liability for defamation or
interference-related statements [Kuczewski] [made] while he [was] standing
in front of the City Council; rather[,] Plaintiffs seek [to impose] liability
against Defendants [i.e., Kuczewski and Holland] for the broadcast of those
statements on television, on the Internet, and in person-to-person
conversations because they are neither matters of genuine public concern and
not subject to any privilege when broadcast in such a manner.” (Emphasis
omitted.)
22
whether Plaintiffs met their burden under the second step of the anti-SLAPP
analysis (i.e., to show there is a probability they will prevail on the merits of
their causes of action). Accordingly, the trial court correctly denied Holland’s
section 425.16 motion to strike the SAC.
DISPOSITION
The order is affirmed. Respondents shall recover their costs on appeal.
O’ROURKE, J.
WE CONCUR:
McCONNELL, P. J.
HUFFMAN, J.
23