Cabot v. Gelder CA4/1

Filed 7/27/23 Cabot v. Gelder 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JASON CABOT, D079388
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2021-
00004154-CU-DF-CTL)
JEFFREY L. GELDER,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Keri G. Katz, Judge. Reversed with directions.
Jason Cabot, in pro. per., for Plaintiff and Appellant.
Lewis Brisbois Bisgaard & Smith, Jeffry A. Miller, Ernest Slome, Lann
McIntyre; Stratman & Williams-Abrego and Roger L. Popeney for Defendant
and Respondent.
Jason Cabot appeals the judgment dismissing his action for
defamation, false light, and infliction of emotional distress against Jeffrey L.
Gelder after the trial court granted Gelder’s special motion to strike the
complaint as a strategic lawsuit against public participation (SLAPP). Cabot
contends the court erroneously granted the motion because the e-mail sent by
Gelder on which Cabot based his claims was not speech or petitioning activity
protected by the anti-SLAPP statute and because he showed a probability of
prevailing on the claims. Cabot also contends the court erroneously denied
his ex parte application to conduct discovery needed to oppose the motion.
We conclude Gelder’s e-mail did not constitute speech or petitioning activity
within the scope of the anti-SLAPP statute and reverse the judgment.
I.
BACKGROUND
Cabot lives in a seven-unit residential complex managed by a
homeowners association (HOA). On December 12, 2020, he had a physical
altercation at the complex with another resident. Both participants were
taken to a hospital. Cabot was arrested and booked into county jail. No
criminal charges were filed against him, and he was given a certificate of
release stating his arrest shall be deemed a detention only.
On December 29, 2020, a member of the HOA’s board of directors sent
an e-mail to homeowners about the altercation. The director stated the board
had met and decided it need not take any action. The board, “however,
agreed to open up discussions with the entire community . . . to get a pulse on
whether owners would like to take steps to increase security on the property,”
including “additional lighting, cameras or any other suggested actions
deemed appropriate.” The director stated the homeowners would not be
meeting in person and asked them to respond to her e-mail.
On December 30, 2020, Gelder responded to the director’s e-mail and
sent copies to seven other e-mail addresses. At the top of the response, he
wrote: “THIS RESPONSE IS NOT TO BE SHARED WITH [CABOT].” After
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thanking the board for addressing the altercation between Cabot and the
other resident, Gelder continued:
“Having been [a] witness to a portion of this ‘altercation’ on
December 12th both visually and audibly and viewing evidence
the morning after, the more correct term is, pre-meditated
viscous [sic] attack. I don’t say this to scare anyone but to
caution you to please be vigilant and extra careful. As you may
know, the police, ambulance and fire dept. have been called to
this address numerous times in the last two years.
“What happened on December 12th is a criminal case. The
detective who interviewed me suggested that we might all get a
‘non-negative’ retraining [sic] order, which means the person can
speak to us but as soon as it becomes at all negative a report
should be made and he must keep a distance.
“The detective also stated that if we had at least one camera this
could be an open and closed case. Now, there will be a hearing in
February.
“Therefore, I believe its [sic] a given that we don’t want anything
like this to happen again and a camera(s) and motion sensor
lighting are a mandatory addition to the property.
“If anyone has any questions or concerns, feel free to contact me.”
Based in part on Gelder’s e-mail, Cabot filed a complaint for
damages against Gelder. In a count labeled “defamation,” Cabot
alleged Gelder falsely told their neighbors and others that he (Cabot)
had assaulted a neighbor and committed crimes. In a count labeled
“false light,” Cabot alleged Gelder falsely implied Cabot was a
dangerous person by telling their neighbors that police had been sent to
his house on several occasions.1 In a count labeled “infliction of
1 “False light is a species of invasion of privacy, based on publicity that
places a plaintiff before the public in a false light that would be highly
offensive to a reasonable person, and where the defendant knew or acted in
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emotional distress,” Cabot alleged Gelder’s statements to the neighbors
were extreme and outrageous and Gelder intentionally or negligently
caused Cabot to suffer severe emotional distress.
Gelder responded with a special motion to strike the complaint as
a SLAPP. (Code Civ. Proc., § 425.16.) He argued, among other points,
that the statements in his December 30, 2020 e-mail were made in
furtherance of his constitutional right of petition or free speech in
connection with a public issue or issue of public interest (id., § 425.16,
subd. (e)(4)), and that Cabot could not prevail on his claims because the
statements underlying them were privileged (Civ. Code, § 47). In
support of the anti-SLAPP motion, Gelder lodged several documents,
including copies of his e-mail, the e-mail the HOA director sent the
previous day, the police report of the physical altercation between
Cabot and his neighbor, and a record of calls for police service to
Cabot’s address.
Cabot filed a motion to lift the stay of discovery triggered by the filing
of the anti-SLAPP motion so that he could serve special interrogatories on
Gelder and depose him concerning the basis for his statements about the
December 12, 2020 altercation. (Code Civ. Proc., § 425.16, subd. (g).) The
trial court granted the motion and allowed Cabot to serve four special
interrogatories on Gelder and to depose him for three hours. Dissatisfied
with the testimony Gelder gave during the deposition, Cabot filed an ex parte
application to take additional discovery, which the court denied.
Cabot then filed opposition to the anti-SLAPP motion. He argued that
Gelder’s statements to other HOA members about the December 12, 2020
reckless disregard as to the falsity of the publicized matter and the false light
in which the plaintiff would be placed.” (Price v. Operating Engineers Local
Union No. 3 (2011) 195 Cal.App.4th 962, 970.)
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altercation did not constitute speech or petitioning activity within the scope
of the anti-SLAPP statute. Cabot further argued that even if the statute
covered Gelder’s statements, the claims had sufficient merit to survive the
motion because the statements were defamatory per se and cast Cabot in a
false light, and because the common-interest privilege2 did not shield Gelder
from liability since he made the statements with malice and they went
beyond what was necessary to the situation. As part of the opposition, Cabot
submitted declarations from himself and his roommate describing the
December 12, 2020 altercation, a copy of the certificate of release, and a copy
of Gelder’s deposition transcript.
In reply, Gelder repeated and expanded on the arguments in his initial
papers that his December 30, 2020 e-mail fell within the scope of the anti-
SLAPP statute. He added that the common-interest privilege (see fn. 2, ante)
applied because he did not send the e-mail with actual malice.
The trial court held a hearing on the anti-SLAPP motion, took the
matter under submission, and later issued a minute order granting the
motion. The court ruled Gelder’s e-mail “was written ‘in connection with a
public issue or an issue of public interest,’ ” namely, the HOA’s solicitation of
input from homeowners about the need for additional security features at the
residential complex, and therefore constituted protected activity under the
anti-SLAPP statute. (Code Civ. Proc., § 425.16, subd. (e)(4).) The court
further ruled the common-interest privilege (see fn. 2, ante) applied to the e-
2 “A privileged publication or broadcast is one made . . . [i]n a
communication, without malice, to a person interested therein, (1) by one who
is also interested, or (2) by one who stands in such a relation to the person
interested as to afford a reasonable ground for supposing the motive for the
communication to be innocent, or (3) who is requested by the person
interested to give the information.” (Civ. Code, § 47, subd. (c).)
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mail and defeated all of Cabot’s claims. The court struck Cabot’s complaint
and entered a judgment of dismissal.
II.
PARTIES’ CONTENTIONS
Cabot asks us to reverse the judgment, the order granting the anti-
SLAPP motion, and the order denying his ex parte application to conduct
additional discovery. Cabot contends the trial court should have denied the
motion because: (1) Gelder’s statements about him in the December 30, 2020
e-mail to other homeowners do not qualify as activity protected by the anti-
SLAPP statute; (2) Gelder made other defamatory statements outside the
HOA context; (3) Cabot submitted evidence showing the statements in the e-
mail were defamatory per se and cast him in a false light; and (4) the
common-interest privilege did not apply since Gelder provided information
that had not been requested in the e-mail to which he responded and a trier
of fact could conclude he acted with actual malice. Cabot also contends the
court should have allowed him to take additional discovery to obtain evidence
of other statements Gelder had made about him that he needed to establish a
prima facie case.
Gelder asks us to affirm the judgment. He contends the trial court
correctly ruled the anti-SLAPP statute applied, because his December 30,
2020 response to the e-mail from the HOA director about the December 12
physical altercation involving Cabot and the HOA’s need for additional
security concerned a public issue or an issue of public interest within the
meaning of Code of Civil Procedure section 425.16, subdivision (e)(4). Gelder
further contends Cabot did not meet his burden to show a probability of
prevailing on his claims, because he did not establish the claims arose out of
statements other than those in the December 30, 2020 e-mail, and that e-mail
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fell within the scope of the common-interest privilege. As to the additional
discovery Cabot had requested, Gelder contends the ex parte application was
procedurally and substantively defective, and Cabot has not shown the trial
court abused its discretion in denying the application.
III.
DISCUSSION
We begin by setting out some general principles regarding anti-SLAPP
motions. “The anti-SLAPP statute enables defendants to quickly terminate
meritless actions against them that are based on their constitutionally
protected rights to speak freely and petition for redress of grievances.”
(Dziubla v. Piazza (2020) 59 Cal.App.5th 140, 147.) To accomplish that goal,
the statute 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.” (Code Civ. Proc.,
§ 425.16, subd. (b)(1).)3
3 The motion may, but need not, target an entire cause of action or count
as pleaded in the complaint. “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 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.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 395 (Baral).)
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Resolution of an anti-SLAPP motion typically involves two steps. The
defendant moving to strike a cause of action as a SLAPP must first show the
act underlying the claim falls within one of the four categories of protected
activity listed in Code of Civil Procedure section 425.16, subdivision (e).
(Baral, supra, 1 Cal.5th at pp. 384, 396; Bowen v. Lin (2022) 80 Cal.App.5th
155, 160 (Bowen).) If the defendant makes that showing, the burden then
shifts to the plaintiff to show the targeted cause of action is legally sufficient
and is supported by evidence that, if credited, would sustain a judgment for
the plaintiff. (Baral, at pp. 384, 396; Bowen, at p. 160.)
“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.”
(Navellier v. Sletten (2002) 29 Cal.4th 82, 89 (Navellier); accord, Bowen,
supra, 80 Cal.App.5th at p. 160.) The trial court’s decision on both prongs is
subject to de novo review on appeal. (Geiser v. Kuhns (2022) 13 Cal.5th 1238,
1250; Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 796; Starr v.
Ashbrook (2023) 87 Cal.App.5th 999, 1018.)
We turn now to whether Gelder’s December 30, 2020 e-mail constituted
activity protected by the anti-SLAPP statute. The trial court ruled that
because Gelder sent his e-mail “in response to a solicitation from the [HOA]
in its efforts to assess the need for ‘additional lighting, cameras or any other
suggested actions’ or ‘potential actions’ following the incident of December 12,
2020,” the e-mail “was written ‘in connection with a public issue or an issue of
public interest’ ” and thus constituted protected activity under Code of Civil
Procedure section 425.16, subdivision (e)(4). On appeal, Gelder relies
exclusively on the same statutory provision in support of his argument that
Cabot’s claims arose from protected activity “because Gelder’s email
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addresse[d] the community concern about safety and the need for additional
security measures.”4 We disagree. As we shall explain, Gelder’s e-mail was
a private communication about a private matter; it was not “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.” (Code Civ. Proc., § 425.16, subd. (e)(4), italics added.)
The anti-SLAPP statute does not define “public issue” or “issue of
public interest,” but the courts have given the phrases meaning.5 “Public
4 In the trial court, Gelder also argued his e-mail constituted protected
activity because it was made “before,” or “in connection with an issue under
consideration or review by,” a “legislative, executive, or judicial body, or any
other official proceeding authorized by law.” (Code Civ. Proc., § 425.16,
subd. (e)(1), (2).) The court correctly rejected that argument, and Gelder has
not renewed it on appeal. (See Talega Maintenance Corp. v. Standard Pacific
Corp. (2014) 225 Cal.App.4th 722, 732 [HOA “meetings fall outside the scope
of official proceedings”].) Gelder further argued in the trial court that his e-
mail constituted protected activity because it was “made in a place open to
the public or a public forum in connection with an issue of public interest.”
(Code Civ. Proc., § 425.16, subd. (e)(3).) Although the court noted the
argument, it neither accepted nor rejected it, apparently because it concluded
the e-mail was sent “in connection with a public issue or an issue of public
interest.” (Id., § 425.16, subd. (e)(4).) Gelder argues on appeal that whether
or not his e-mail was speech in a public forum, it qualifies as protected
activity because it concerned a public issue. (See Wilbanks v. Wolk (2004)
121 Cal.App.4th 883, 897 (Wilbanks) [Code Civ. Proc., § 425.16, subd. (e)(4)
“includes conduct in furtherance of free speech rights, regardless whether
that conduct occurs in a place where ideas are freely exchanged”].) As we
explain in the text, however, the e-mail involved no public issue or issue of
public interest.
5 Courts have attributed no substantive difference to the quoted phrases
and have used them interchangeably. (See, e.g., Clarity Co. Consulting, LLC
v. Gabriel (2022) 77 Cal.App.5th 454, 463; Colyear v. Rolling Hills
Community Assn. of Rancho Palos Verdes (2017) 9 Cal.App.5th 119, 130-131
(Colyear); Wilbanks, supra, 121 Cal.App.4th at p. 898; Du Charme v.
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interest” is not limited to governmental matters and includes private
conduct. (Grenier v. Taylor (2015) 234 Cal.App.4th 471, 482; Damon v. Ocean
Hills Journalism Club (2000) 85 Cal.App.4th 468, 479 (Damon).) “[A] matter
of public interest should be something of concern to a substantial number of
people,” not just “to the speaker and a relatively small, specific audience.”
(Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1132 (Weinberg); accord,
Grenier, at p. 481.) To decide whether speech or petitioning activity concerns
a public issue, courts consider “whether the subject of the speech or activity
‘was a person or entity in the public eye’ or ‘could affect large numbers of
people beyond the direct participants’ ”; and “whether the activity ‘occur[red]
in the context of an ongoing controversy, dispute or discussion,’ ” or
“ ‘affect[ed] a community in a manner similar to that of a governmental
entity.’ ” (FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 145-146
(FilmOn.com).) If “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, supra, 110 Cal.App.4th at p. 119; accord, Li v. Jin (2022)
83 Cal.App.5th 481, 496 (Li).)
Considering the factors identified above, we conclude Gelder’s
December 30, 2020 e-mail did not concern “a public issue” or “an issue of
public interest.” (Code Civ. Proc., § 425.16, subd. (e)(4).) Nothing in the
record suggests Cabot, who is the subject of the allegedly defamatory
International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107,
119 (Du Charme).) We do the same.
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statements in the e-mail, was “ ‘in the public eye.’ ” (FilmOn.com, supra,7 Cal.5th at p. 145.) Allegedly defamatory statements about “an individual
who had previously received no public attention or media coverage” do not
concern an issue of public interest. (Rivero v. American Federation of State,
County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 924
(Rivero); compare ibid. with Sipple v. Foundation for Nat. Progress (1999)
71 Cal.App.4th 226, 239 [allegedly defamatory statements about “nationally
known figure” concerned issue of public interest].)
Gelder’s comments that the physical altercation between Cabot and the
neighbor was “pre-meditated” and “vi[ci]ous” and that “police, ambulance and
fire dept. have been called to this address numerous times in the last two
years” do not concern conduct that “ ‘could affect large numbers of people
beyond the direct participants.’ ” (FilmOn.com, supra, 7 Cal.5th at p. 145;
compare Rivero, supra, 105 Cal.App.4th at p. 925 [alleged nepotism and other
wrongful conduct of supervisor of eight custodians “simply do not constitute
matters of public interest”] with Macias v. Hartwell (1997) 55 Cal.App.4th
669, 673-674 [allegedly libelous statements about candidate’s qualifications
to serve as president of 10,000-member union made during election campaign
concerned public issue].) Such matters are of concern not to “a substantial
number of people,” but only “to the speaker and a relatively small, specific
audience,” namely, the residents of the seven-unit HOA to which Cabot and
Gelder belonged. (Weinberg, supra, 110 Cal.App.4th at p. 1132; see id. at
p. 1135 [accusations of criminal conduct made “to discredit [token collector] in
the eyes of a relatively small group of fellow collectors” were not matters of
public interest].)
Gelder’s e-mail was part of an “ ‘ongoing . . . discussion’ ” (FilmOn.com,
supra, 7 Cal.5th at p. 145) among homeowners about the need for “additional
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lighting, cameras or any other suggested actions deemed appropriate” “to
increase security on the property.” Such an informal discussion among the
members of a seven-unit HOA, however, neither concerned “a topic of
widespread, public interest” (Rivero, supra, 105 Cal.App.4th at p. 924) nor
“ ‘affect[ed] a community in a manner similar to that of a governmental
entity’ ” (FilmOn.com, at pp. 145-146). Even if the need for additional
security measures in such a small community qualifies as a matter of public
interest (call it “public safety”), there must be “ ‘some degree of closeness’
between the challenged statements and the asserted public interest” for the
anti-SLAPP statute to apply. (Id. at p. 150.) The contents of Gelder’s e-mail
that Cabot alleges defamed him and cast him in a false light—Gelder’s
characterization of the physical altercation involving Cabot as “pre-
meditated” and “vi[ci]ous,” and his reminder that the police, ambulance, and
fire department had been called to Cabot’s home multiple times in the past—
did not themselves “ ‘contribute to the public debate’ ” on the issue of public
safety and therefore are not protected by the anti-SLAPP statute. (Ibid.; see
Musero v. Creative Artists Agency, LLC (2021) 72 Cal.App.5th 802, 820
[“connecting a broad and amorphous public interest to a specific dispute is
not enough”].)
We are aware that based on the same factors we have just considered,
“several courts have found protected conduct in the context of disputes within
a homeowners association.” (Colyear, supra, 9 Cal.App.5th at p. 131.) Gelder
relies on decisions of some of those courts. Those decisions are
distinguishable, however, and do not support the conclusion that Cabot’s tort
claims arose from activity protected by the anti-SLAPP statute.
In the cases Gelder cites, courts held a dispute was a SLAPP when the
underlying conduct involved HOA governance or an issue of concern to a
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large number of people living in an HOA. For example, allegedly defamatory
statements of homeowners in a large HOA about a former manager’s
competence and whether the HOA should remain self-governing or hire a
professional manager were held to constitute protected activity, because “the
statements were made in connection with . . . [b]oard elections and recall
campaigns” and “concerned the very manner in which this group of more
than 3,000 individuals would be governed—an inherently political question of
vital importance to each individual and to the community as a whole.”
(Damon, supra, 85 Cal.App.4th at p. 479.) Allegedly libelous statements
about the board’s governance and enforcement of rules in an HOA of more
than 500 members were held to be protected because those topics were
“issues of concern to the many [HOA] members.” (Ruiz v. Harbor View
Community Assn. (2005) 134 Cal.App.4th 1456, 1470; see Colyear, supra,
9 Cal.App.5th at pp. 125, 132-133 [homeowner’s invocation of tree-trimming
dispute resolution process was protected activity because HOA’s authority to
enforce tree-trimming covenants for 755 lots was of interest to entire HOA].)
A homeowner’s speaking out against and petition to recall directors of the
board of an HOA were also held to involve matters of public interest because
the board “was in a position to impact the lives of many individuals through
its decisionmaking process.” (Country Side Villas Homeowners Assn. v. Ivie
(2011) 193 Cal.App.4th 1110, 1118; see Lee v. Silveira (2016) 6 Cal.App.5th
527, 530, 540 [debate and votes of directors of board of 440-unit HOA on
approval of roofing project and management contract were protected
activities because they affected multiple buildings and most HOA members].)
Unlike the speech or petitioning activity in the cases just discussed, the
statements about Cabot in Gelder’s e-mail did “not involve board elections,
recall campaigns, . . . who should be the manager of the [HOA],” or “a
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governance issue of potential interest to all homeowners.” (Turner v. Vista
Pointe Ridge Homeowners Assn. (2009) 180 Cal.App.4th 676, 684, 687
(Turner) [distinguishing some cases on which Gelder relies].) Rather,
Gelder’s statements that Cabot’s physical altercation with the neighbor was
“pre-meditated” and “vi[ci]ous” and that police had been called to Cabot’s
home numerous times asserted or implied that Cabot was a dangerous
criminal. Claims based on allegedly false accusations of crime do not arise
from activity protected by the anti-SLAPP statute where, as here, the
plaintiff is “a private, anonymous” party and the accusations were made only
to “a small group of other private parties.” (Weinberg, supra, 110 Cal.App.4th
at p. 1132; accord, Abuemeira v. Stephens (2016) 246 Cal.App.4th 1291,
1298.) It does not matter that Gelder made the accusations to other
homeowners in response to an e-mail from the HOA, because “[n]ot every
mundane communication between a homeowners association and a
homeowner gives rise to a freedom of speech issue.” (Turner, at p. 679.)
Since Gelder “has failed to demonstrate that his dispute with [Cabot] was
anything other than a private dispute between private parties” (Weinberg, at
p. 1134), Gelder has not met his burden to show Cabot’s claims arose from
“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” (Code Civ. Proc., § 425.16, subd. (e)(4)).
Our conclusion that Cabot’s claims did not arise from speech or
petitioning activity protected by the anti-SLAPP statute means his claims
were not subject to being stricken under the statute. (Navellier, supra,29 Cal.4th at p. 89; Verceles v. Los Angeles Unified School Dist. (2021)
63 Cal.App.5th 776, 784.) We therefore need not, and do not, consider
whether Cabot established a probability of prevailing on the claims (City of
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Cotati v. Cashman (2002) 29 Cal.4th 69, 80-81; Turner, supra,
180 Cal.App.4th at p. 688), or whether the trial court abused its discretion in
denying his ex parte application to conduct additional discovery he claimed
he needed to obtain evidence to oppose the anti-SLAPP motion (Wang v. Wal-
Mart Real Estate Business Trust (2007) 153 Cal.App.4th 790, 811).
IV.
DISPOSITION
The judgment is reversed. The matter is remanded with directions to
the trial court to vacate its order granting the anti-SLAPP motion and to
enter a new order denying the motion. Cabot shall recover costs on appeal.
IRION, J.
WE CONCUR:
HUFFMAN, Acting P. J.
BUCHANAN, J.
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