Opinion
H048452
07-19-2022
BHUPINDAR S. DHILLON et. al., Plaintiffs and Respondents v. KULWANT SINGH, Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 20-CV-362159
Danner, J.
This appeal requires us to consider whether a Facebook post alleging that leaders of a Sikh temple allowed a drug trade to flourish in their community constitutes protected speech "in connection with an issue of public interest" under Code of Civil Procedure section 425.16 (the anti-SLAPP statute).
Unspecified statutory references are to the Code of Civil Procedure.
Bhupindar Dhillon (Dhillon) and Sukhdev Bainiwal (Bainiwal) (together, respondents) are members of the governing committee of the Sikh Gurdwara-San Jose (Gurdwara), a Sikh Temple with over 9,000 members. Respondents sued defendant and appellant Kulwant Singh (Singh) for defamation after Singh posted a statement and photographs on a Facebook group page claiming that respondents sheltered illegal drug trafficking at the Gurdwara, used their family connections in law enforcement to shield the illegal activities from criminal investigation, and put the community's children at risk of drug addiction. Singh responded by filing an anti-SLAPP motion to strike the complaint under section 425.16.
An anti-SLAPP motion is "a special motion to strike a 'strategic lawsuit against public participation (SLAPP).'" (Parrish v. Latham & Watkins (2017) 3 Cal.5th 767, 773-774.)
The trial court denied the motion. The court decided, under the first prong of the statutory analysis that, although Singh made his statements in a public forum, they did not come within any categories of protected speech under section 425.16, subdivision (e). The court also decided, under the second prong of the statutory analysis, that respondents had demonstrated a likelihood of prevailing on the merits of their defamation complaint.
Singh challenges the trial court's ruling on several grounds. Singh contends that the trial court erred by taking a narrow view of what constitutes an "issue of public interest" (§ 425.16, subd. (e)(3)) or "public issue" (id., subd. (e)(4)) under the statute and failing to consider evidence demonstrating the importance of issues referenced in the Facebook post to the membership of the Gurdwara and the broader Sikh community. Singh also contends the trial court failed to recognize respondents as public figures, or, at least, limited public figures, despite their status as elected officials of "the largest Sikh Gurdwara in North America," who were also running for reelection in a highly contested race. Singh maintains the trial court erred in finding a likelihood of success under the second prong of the statutory analysis.
We decide the Facebook post was too remotely connected to any public conversation related to its content to qualify as protected speech under the anti-SLAPP statute and therefore affirm the trial court's order denying the motion.
I. FACTS AND PROCEDURAL BACKGROUND
We draw the following facts from the pleadings and supporting declarations submitted in the trial court. We accept respondents' factual assertions as true for the purpose of resolving whether the trial court erred in denying Singh's anti-SLAPP motion and consider only whether any contrary evidence from Singh establishes his entitlement to prevail as a matter of law. (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067 (Park); Laker v. Board of Trustees of California State University (2019) 32 Cal.App.5th 745, 754 (Laker.)
A. Sikh Gurdwara-San Jose
The Gurdwara is a nonprofit religious corporation which operates a Sikh Temple in San Jose with over 9,000 members. The Temple is a place of worship where the Sikh community congregates daily. Approximately 700 children attend the Gurdwara's Sunday school. According to Singh, the San Jose Gurdwara is the largest in North America, and "a symbol of pride and identity for Sikhs nationwide."
Dhillon and Bainiwal are members of the Parbandhak Committee, the Gurdwara's governing committee. Dhillon is also the president of the Gurdwara. At the time of the events in this lawsuit, Dhillon and Bainiwal were running for reelection to the governing committee.
Singh is a member of the Gurdwara. He describes himself as a Sikh missionary and active voting member of the Gurdwara. Singh is also a vocal opponent of the Parbandhak Committee. He believes the Parbandhak Committee leaders, including Dhillon and Bainiwal, are allowing illegal drugs to be sold at the Gurdwara, are not aligned with the Sikh code of conduct, and "have betrayed the Sikh religious teachings."
There are two main slates (parties) at the Gurdwara. The slates put forth candidates, publish election materials, and post statements online expressing their political views. The opposition slate to the governing Parbandhak Committee is referred to as the Sudhar Committee, or the Sadh Sangat Slate. According to Singh, the Sudhar Committee has been highly critical of the leadership of the Parbandhak Committee and has accused its members of corruption, misappropriation of funds, and violations of the Sikh code of conduct.
Singh asserts that Dhillon and Bainiwal "are public figures" who "have dominated the politics of the Gurdwara" for years. Singh believes that Dhillon and Bainiwal "have influence with government officials as a result of their positions and involvement in local politics" and "have used their influence with the local law enforcement and the district attorney['s] office to prevent the investigation and prosecution of crimes taking place at the Gurdwara." Singh states that he "and others in the Sikh community are gravely concerned for the health, safety and well-being of [the] children and families that attend the Gurdwara."
B. Singh's Facebook Post
Singh started a Facebook group page called" 'San Jose Sangat'" as a platform to express his views and as a forum for members of the community to share their thoughts, opinions, and concerns on issues important to the local and broader Sikh communities. San Jose Sangat has approximately 3,000 members. Singh and others have used the Facebook page to express concerns about the leadership of the Gurdwara and the current members of the Parbandhak Committee.
Singh met in October 2019 at a Gurdwara in Milpitas with former Parbandhak Committee members and approximately 40 other individuals. According to Singh, they discussed the issue of drug sales at the Gurdwara. Singh asserts the attendees "discussed and believed" that Dhillon and/or Bainiwal were tipping off those who were selling drugs before the arrival of undercover police investigators.
Unless otherwise indicated, all dates were in 2019.
Singh also described an incident in January 2015 when he found a "Mr. Kamaldeep who had overdosed on drugs" in his car at the Gurdwara parking lot. Singh helped Mr. Kamaldeep get medical attention and allowed him to live at his house and rehabilitate. Singh attested that the doctors who treated Mr. Kamaldeep at the hospital confirmed that he had suffered from a drug overdose, and Mr. Kamaldeep stated he had obtained the drugs at the Gurdwara. Singh attested that Mr. Kamaldeep had since "moved on with his life" and no longer lived with him.
On or around October 30, Singh posted messages in Punjabi on San Jose Sangat's Facebook page about illegal drug sales at the Gurdwara (the Facebook post). Translated into English, the Facebook post states:
• "The drug trade is running in full swing at the Sikh Temple (Gurdwara), San Jose under the clouts of Bob Dillan [sic] and Sukha Beniwal [sic].
• "Their relatives in Police and D.A. Office extend help and shield them from prevailing big crimes at Sikh Temple.
• "We request the community to take care of their kids, so that, they do not fall prey to the influence of these wicked men and become drug addicts."
Singh did not remove the Facebook post despite being told the statements were false. On November 4, respondents served Singh with a demand for correction to remove the October 30 statements from the San Jose Sangat Facebook page as well as from any other social media outlet on which Singh may have copied or posted the material. As of respondents' filing of the complaint, Singh had not removed the Facebook post.
Singh asserts that he removed the Facebook post in November 2019 after receiving a notice from respondents' lawyer, though he does not believe his statements were inaccurate.
C. Respondents' Defamation Action
In January 2020, Dhillon and Bainiwal filed the operative complaint for defamation (complaint), seeking damages, including punitive damages, and injunctive relief. The complaint alleged that on October 30, Singh posted, published, and circulated a false and defamatory statement on his San Jose Sangat Facebook page, along with three photographs depicting Dhillon and Bainiwal, claiming that an illegal drug business was being run at the Gurdwara under their authority or influence (stated as "clouts" in the translated post). The complaint alleged that an "unknown number of persons in the Sikh community" had viewed the post, which as of November 14, 2019, had received 11" 'likes'" and two" 'comments.'" Respondents claimed that Singh's statements were not only false but malicious in that they exposed Dhillon and Bainiwal to hatred and ridicule by falsely accusing them of overseeing a criminal enterprise at the Sikh Temple and of exposing children in the community to harm.
D. Singh's Anti-SLAPP Motion
In May 2020, after having obtained an extension of time and filed an answer denying the complaint's allegations, Singh filed an anti-SLAPP motion to strike respondents' complaint in its entirety.
The anti-SLAPP motion asserted that respondents' complaint should be stricken because it targets "constitutionally protected criticism and censure of elected officials of the largest Sikh Gurdwara in North America." Under the first prong, Singh argued that the San Jose Sangat Facebook group page, where he posted his statements, comes within the definition of a "public forum" for purposes of the anti-SLAPP statute according to case authority. He contended that activities at the Gurdwara, including concerns about criminal activity at the Gurdwara and corruption of the Sikh moral code by governing board members, are "public issues" and "concern issues of public interest" under section 425.16, subdivision (e)(3) (hereafter section 425.16(e)(3)) and subdivision (e)(4) (hereafter section 425.16(e)(4)), and thus constitute protected speech under the anti-SLAPP framework. Alternatively, Singh argued that even if San Jose Sangat is considered a limited public forum or a forum between private individuals, the public interest requirement is still satisfied under Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107, 115 (Du Charme), because the public issue is of interest to a limited, definable portion of the public. Finally, Singh maintained that respondents are public figures, or limited public figures, "who run for election every two years at the largest Sikh Gurdwara in North America" and have "injected themselves into the public eye" through their leadership at the Gurdwara. As such, Singh asserted that he had a constitutionally protected right to criticize the community leaders, thus requiring respondents to prove "actual malice" to prevail on the merits of their claim at the second step of the anti-SLAPP analysis.
Singh's special motion to strike was accompanied by declarations and exhibits. Singh's declaration recounted his involvement at the Gurdwara and his concerns about its governance and the alleged drug trade occurring under the oversight of Dhillon and Bainiwal. Singh asserted this was "not the first time" respondents had tried to silence him with a defamation suit for expressing his views about their leadership and pointed to a lawsuit filed against him in 2012 (Sikh Gurdwara-San Jose, et al., v. Singh (Super. Ct. Santa Clara County, 2012 No. 1-12-CV-232644)) when respondents sued him for libel. Singh attested that the jury in that case found respondents could not prove their claims, and judgment was entered in favor of Singh. Among the exhibits to Singh's declaration were excerpts of news coverage about a political power struggle that began in 2009 between the Gurdwara's governing committee members and their critics.
Singh also submitted declarations of seven other individuals. The seven declarations included the name, address, and signature of the declarant but were otherwise identical. Each stated that the declarant regularly attended the Gurdwara and believed that Dhillon, Bainiwal, and the governing committee were allowing unlawful activities to occur at the Gurdwara and had influenced local law enforcement and the district attorney's office to prevent the investigation and prosecution of crimes occurring there.
Respondents filed written opposition to the anti-SLAPP motion supported by declarations, a request for judicial notice, and detailed evidentiary objections to Singh's supporting declarations and evidence. The Dhillon and Bainiwal declarations asserted facts related to each of their leadership roles and history of involvement at the Gurdwara and stated that at no time had anyone in the community raised a complaint or concern about drugs or drug sales at the Gurdwara. Respondents each attested that they would never allow, condone, or overlook drug sales at the Gurdwara, and that doing so would violate their Sikh religious beliefs and values as well as their personal, family, and community commitments to the Gurdwara. Both Bainiwal and Dhillon also each described their personal history with Singh and the litigation matters that had arisen previously between them.
Respondents asked the trial court to take judicial notice of two documents. The first was a court order entered in the case of Kulwant Singh v. Sukdhev S. Bainiwal (Super. Ct. Santa Clara County, No. 1-12-CH-004513) from prior litigation involving Bainiwal and Singh. The second was a list provided by the San Jose Police Department of calls for service and reported incidents for the Gurdwara between July 2015 and July 2020.
E. Order Denying the Anti-SLAPP Motion
On August 20, 2020, the trial court issued a written order denying Singh's anti-SLAPP motion.
Regarding respondents' request for judicial notice and evidentiary objections, the trial court denied the request as to the San Jose Police Department's list of calls for service and reported incidents for the Gurdwara and granted the request as to the court order from prior litigation between Singh and Bainiwal. The court sustained in part respondents' objections to Singh's declarations and evidence. We discuss the trial court's evidentiary rulings in more detail below.
On the merits of the anti-SLAPP motion, the trial court found that although Singh had established that his statements were made in a public forum, he failed to show the statements were made in connection with a public issue or an issue of public interest. The trial court found that Singh failed to present any evidence showing that the subject of his Facebook post was of widespread public interest or occurred in the context of an ongoing controversy, dispute, or discussion within the defined community. The court concluded that Singh had not met his initial burden to show that respondents' claims arise from protected activity.
The trial court also addressed the second prong of the anti-SLAPP analysis. It found that while it did not need to reach the issue, respondents had submitted admissible evidence sufficient to establish a prima facie showing of facts to support a judgment in their favor.
F. Request for Reconsideration and Appeal
Shortly after the trial court filed its August 20, 2020 order denying Singh's anti-SLAPP motion, Singh timely filed in the trial court a notice of motion and motion for reconsideration accompanied by a declaration by Singh's counsel and exhibits. In support of the motion, Singh argued that new facts and evidence had emerged since the filing of the anti-SLAPP motion that justified reconsideration-namely, a court filing in an unrelated case involving Dhillon and Bainiwal in which they purportedly took a position contrary to the position asserted in opposition to the anti-SLAPP motion in this case about their status as public figures or limited public figures as elected leaders of the Gurdwara.
The accompanying declaration of Singh's counsel stated that in June 2020, in the unrelated case (Khalsa, et al. v. Dhillon, et al. (Super. Ct. Santa Clara County No. 20CV361652)), Dhillon and Bainiwal filed an anti-SLAPP motion in which they asserted numerous facts to support their argument that matters related to the election of the governing board of the Gurdwara, including the integrity and character of its leaders, were a matter of public concern for purposes of the anti-SLAPP statute.
On September 10, 2020, a few days after having filed the motion for reconsideration, Singh filed a notice of appeal of the trial court's August 20, 2020 order denying his anti-SLAPP motion. It appears from the record that the motion for reconsideration was not adjudicated in the trial court, and Singh does not maintain that it was. Nevertheless, Singh specifically designated the motion for reconsideration and evidence submitted in support of the motion as part of the record on appeal. During the pendency of the appeal, respondents timely filed in this court a motion for sanctions and attorney fees (sanctions motion), based in part on Singh's attempt to utilize the evidence offered in support of the motion for reconsideration in arguing the appeal. We address the sanctions motion following our discussion of the merits of the appeal.
II. DISCUSSION
Although Singh asserts multiple errors in the trial court's ruling, we primarily address whether the trial court erred in concluding Singh's Facebook post was not made "in connection with a public issue." (§ 425.16, subds. (b)(1), (e).)
A. The Anti-SLAPP Statute
Section 425.16, commonly known as the anti-SLAPP statute, provides that a cause of action arising from an act in furtherance of a person's constitutional right of petition or free speech in connection with a public issue is subject to a special motion to strike, unless the plaintiff establishes a probability of prevailing on the claim. (§ 425.16, subd. (b)(1).) A court evaluates a special motion to strike in two steps. The first examines the nature of the conduct that underlies the plaintiff's allegations to determine whether it is protected by section 425.16; the second assesses the merits of the plaintiff's claim. (Barry v. State Bar of California (2017) 2 Cal.5th 318, 321 (Barry); see also Laker, supra, 32 Cal.App.5th at p. 760.)
In the first step, "the trial court determines whether the cause of action 'arises from' an '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.'" (Laker, supra, 32 Cal.App.5th at p. 760, quoting City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 422.) The moving defendant must show the speech or petitioning act underlying the plaintiff's claim fits one of the four categories of protected acts enumerated in section 425.16, subdivision (e). (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884 (Wilson).) Only the last two categories are at issue here: "[A]ny written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest" (§ 425.16(e)(3)) and "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." (§ 425.16(e)(4).)
If the defendant prevails at the first step, the burden shifts to the plaintiff. (§ 425.16, subd. (b)(1); Wilson, supra, 7 Cal.5th at p. 884.) In this second step, the plaintiff must demonstrate to the trial court" 'that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.'" (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.) This aspect of the anti-SLAPP analysis is a" 'summary-judgment-like procedure.'" (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.) "If the plaintiff is unable to demonstrate that his or her claim has at least minimal merit, then the trial court should deem the cause of action a SLAPP and should strike it." (Laker, supra, 32 Cal.App.5th at p. 760.)
"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.)
B. Standard of Review
"We review de novo the grant or denial of any 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." (Park, supra, 2 Cal.5th at p. 1067.) We consider the pleadings and declarations, accepting as true the evidence that favors the plaintiff (here, respondents) and evaluating the defendant's evidence (here, Singh's evidence)" '" 'only to determine if it has defeated that submitted by the plaintiff as a matter of law.'" '" (Barry, supra, 2 Cal.5th at p. 321.)
If we conclude that the trial court did not err in its resolution of the first step of the anti-SLAPP analysis, we may affirm the trial court's order without considering the second step of the anti-SLAPP framework.
C. Analysis
Singh contends the trial court erred in deciding his Facebook post was not a statement made in connection with an issue of public interest or a public issue under section 425.16, subdivision (e)(3) and (e)(4). Singh argues the trial court improperly excluded or failed to consider evidence demonstrating both local and national public interest in the activities of the Gurdwara and its leadership and showing that the subject of criminal and illegal activity "is specifically a topic of public interest at the Gurdwara" for congregants and community members.
Before turning to the merits of these contentions, we first consider whether all of the evidence Singh relies upon in his briefing is properly before us.
1. Evidentiary Considerations
In his briefs filed in this court, Singh repeatedly refers to evidence submitted in connection with his motion for reconsideration. He emphasizes what he characterizes as respondents' "admissions in a separate lawsuit" (bolding & capitalization omitted) about leadership of the Gurdwara being a matter of public concern. However, the motion for reconsideration was never adjudicated in the trial court. A few days after he filed the motion for reconsideration, Singh filed his appeal of the underlying anti-SLAPP order, which divested the trial court of jurisdiction to consider his motion for reconsideration before the trial court could rule on it. (§ 916, subd. (a); Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 197 [" 'The effect of the appeal is to remove the subject matter of the order from the jurisdiction of the lower court.' "].)
Therefore, Singh's statement in his opening brief on appeal, with respect to appealability, that he "seeks review of the trial court's August 20, 2020, Order denying Appellant's Anti-SLAPP Motion . . ., the Court's Order granting Plaintiffs'- Respondents' Evidentiary Objections and denial of Appellant's Motion for Reconsideration" (italics added) is inaccurate. The same is true with respect to Singh's contention that the trial court "failed to consider Respondents' own admissions in a parallel defamation action." There is no trial court order on Singh's motion for reconsideration for us to review.
Singh's evidence from the motion for reconsideration was not part of the record at the time the trial court issued its order on his anti-SLAPP motion. As a reviewing court examines the correctness of a judgment or order based upon a record of only those matters that were before the trial court for its consideration, we disregard Singh's references to evidence filed after the trial court issued the August 20, 2020 order that is the subject of this appeal. (See Knapp v. City of Newport Beach (1960) 186 Cal.App.2d 669, 679.)
Singh also relies in his appellate briefing on facts and evidence to which the court sustained objections in the trial court proceedings. In his opening brief, he does not directly challenge the trial court's evidentiary rulings but asserts at various intervals that the court "improperly excluded or failed to consider" certain proffered evidence on grounds of hearsay or lack of personal knowledge. Singh offers no legal authority or meaningful argument to support his contention that the trial court's evidentiary rulings were improper.
We review the trial court's evidentiary rulings in connection with an anti-SLAPP motion for an abuse of discretion. (Morrow v. Los Angeles Unified School Dist. (2007) 149 Cal.App.4th 1424, 1444.) The trial court sustained entirely respondents' objections to the seven declarations by other Gurdwara members submitted in support of Singh's anti-SLAPP motion. The court also sustained objections to certain statements in Singh's own declaration that lacked foundation, were not based on personal knowledge, or were speculative.
For example, the trial court sustained objections to statements in Singh's declaration to the extent they were offered to establish the truth of statements purportedly made by other individuals, (i.e., Mr. Kamaldeep's reported statement that he had acquired drugs at the Gurdwara and the reported statements of attendees at the meeting in Milpitas that they believed drugs were being sold at the Gurdwara and the dealers tipped off about police investigations). However, the court ruled that to the extent the statements were offered to show these issues were topics of discussion at a Milpitas Gurdwara meeting, they could be considered for that purpose.
By failing to marshal any legal argument or authority to challenge the trial court's evidentiary rulings, Singh cannot demonstrate the trial court abused its discretion. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 566.) Moreover, nothing in the record suggests the trial court's evidentiary rulings were outside the bounds of reason. (See Espejo v. The Copley Press, Inc. (2017) 13 Cal.App.5th 329, 378.) To the contrary, where possible, the trial court sustained respondents' objections on narrow grounds and allowed Singh's evidence to be considered within appropriate limits.
Only in his reply brief does Singh address the trial court's ruling with respect to the seven declarations filed by other Gurdwara members in support of Singh's anti-SLAPP motion. Singh argues that the trial court erred in deeming the declarations noncompliant, since each declarant "substantial[ly] compli[ed]" with the requirements set forth in section 2015.5 for an unsworn declaration to state the place and date of execution. He also argues the trial court improperly sustained objections to the declarations based on lack of personal knowledge.
We reject these arguments. We need not consider points raised for the first time in a reply brief, absent good cause for the failure to present them earlier. (Owens v. City of Oakland Housing, Residential Rent and Relocation Bd. (2020) 49 Cal.App.5th 739, 746; accord United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 157.) Singh has not established good cause for his untimely contentions. Moreover, statements to the effect of "I am aware that individuals have reported illegal activities to the police," and "I am gravely concerned for the health, safety and well being of our children and others at the Gurdwara as a result of the illegal activities that take place at the Gurdwara" supply no facts supporting the declarants' beliefs and do not convey any personal knowledge so as to render those statements likely to be admissible at trial. (See Evid. Code, § 702, subd. (a); Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947 (Sweetwater).)
We decide Singh has not demonstrated error in the trial court's evidentiary rulings.
We now turn to the merits of Singh's challenge to the trial court's order on his anti-SLAPP motion in light of the evidence that was before the court when it ruled on the motion and to which it did not sustain an objection.
2. Public Issue or Issue of Public Interest
Singh contends that his Facebook post to the San Jose Sangat page was protected speech under section 425.16, subdivision (e)(3) and (e)(4). Section 425.16(e)(3) defines protected activity to include "any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest." (§ 425.16(e)(3).) Section 425.16(e)(4) defines protected activity to include "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" (§ 425.16(e)(4)) and serves as "a catchall provision." (FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 139 (FilmOn).) Both section 425.16(e)(3) and section 425.16(e)(4) "are subject to the limitation that the conduct must be in connection with an issue of public interest." (Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1132 (Weinberg); see also Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1123.)
As presented in this appeal, the application of either subpart turns on the same statutory phrase requiring that the statement or speech at issue be made in connection with an issue of public interest or a public issue. (§ 425.16(e)(3), (4).) Because the key language in each subpart (namely, "in connection with . . . an issue of public interest") is the same, and Singh's arguments under each are not substantively different, we address them together. (See Bernstein v. LaBeouf (2019) 43 Cal.App.5th 15, 22 (Bernstein) [addressing together the public issue or issue of public interest considerations of subdivision (e)(3) and (e)(4) using FilmOn's analytical framework].)
With respect to Singh's asserted claim to anti-SLAPP protection under section 425.16(e)(3), there is no dispute that his Facebook post on the San Jose Sangat group Facebook page satisfied the "public forum" element of that provision. "A 'public forum' is traditionally defined as a place that is open to the public where information is freely exchanged." (Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 475 (Damon).) Statements published on online platforms, including Facebook, generally fall within this definition. (See, e.g., Cross v. Facebook, Inc. (2017) 14 Cal.App.5th 190, 199 [noting Facebook pages are"' "public forums" '" in that they are" 'accessible to anyone who consents to Facebook's Terms' "].) San Jose Sangat had approximately 3,000 members who could view and comment on Singh's Facebook post. Further, the complaint alleged that an unknown number of people in the Sikh community had viewed the post, which received several "likes" and a few "comments." The San Jose Sangat page thus served as means of communicating a message about public matters to a large and interested community (Damon, supra, 85 Cal.App.4th at p. 476) and permitted an exchange of views by providing members the option to respond or comment on the post (Chaker v. Mateo (2012) 209 Cal.App.4th 1138, 1146 (Chaker); Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 900 (Wilbanks)). Therefore, Singh's Facebook post satisfied the public forum requirement under section 425.16(e)(3).
The California Supreme Court in FilmOn reiterated certain considerations- previously identified by various appellate courts-relevant to determining what constitutes an issue of public interest. These include "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' [citation]; and whether the activity 'occur[red] in the context of an ongoing controversy, dispute or discussion' [citation], or 'affect[ed] a community in a manner similar to that of a governmental entity' ." (FilmOn, supra, 7 Cal.5th at pp. 145-146.)
The FilmOn court emphasized that it is not enough to simply identify whether the challenged speech is" 'about'" an issue of public interest or may be construed as referring to such an issue. (FilmOn, supra, 7 Cal.5th at p. 149.) To give effect to the Legislature's intent to "encourage continued participation in matters of public significance" (§ 425.16, subd. (a)) and meaning to the statutory language requiring challenged speech or conduct to be "in connection with" an issue of public interest (§ 425.16(e)(3), (4)), courts should employ a two-step analysis.
First, the court looks to the "content of the speech" to determine "what 'public issue or [] issue of public interest' the speech in question implicates." (FilmOn, supra, 7 Cal.5th at p. 149, quoting § 425.16(e)(4).) Second, the court examines the context or "functional relationship [] between the speech and the public conversation about some matter of public interest" (id. at pp. 149-150), focusing on whether the speech in some way contributed to or furthered the discourse that makes the issue one of public interest (id. at pp. 150-151). It is by observing content and context together that courts may determine whether the statement at issue furthers the exercise of constitutional speech rights in connection with a matter of public interest. (Id. at p. 154.) A defendant claiming anti-SLAPP protection must "show not only that its speech referred to an issue of public interest, but also that its speech contributed to public discussion or resolution of the issue." (Wilson, supra, 7 Cal.5th at p. 900.)
Using the FilmOn two-step analysis, we begin by examining the content of Singh's Facebook post. The "specific speech that is the subject of" the plaintiff's claims is "[c]ritical" to the public interest analysis. (Dual Diagnosis Treatment Center, Inc. v. Buschel (2016) 6 Cal.App.5th 1098, 1104 (Buschel); accord Consumer Justice Center v. Trimedica International, Inc. (2003) 107 Cal.App.4th 595, 601; Commonwealth Energy Corp. v. Investor Data Exchange, Inc. (2003) 110 Cal.App.4th 26, 34.) Thus, at this first step, "the focus of our inquiry must be on 'the specific nature of the speech,' rather than on any 'generalities that might be abstracted from it.'" (FilmOn, supra, 7 Cal.5th at p. 152.)
Here, the statements in Singh's Facebook post pertain exclusively to (1) the alleged drug trade "running full swing" at the Gurdwara under the leadership of Dhillon and Bainiwal, (2) relatives of Dhillon and Bainiwal allegedly helping to shield crimes at the Gurdwara from criminal investigation, and (3) children in the community allegedly being at risk of exposure to bad influences and drug addiction. The challenged speech in this case is therefore solely about Dhillon's and Bainiwal's purported role in enabling or shielding an allegedly rampant drug trade at the Gurdwara.
Contrary to Singh's assertions that his statements concern "persons in the public eye" because Dhillon and Bainiwal are elected leaders of the largest Gurdwara in North America and have "prominently injected themselves into Gurdwara politics" and local politics, nothing in the Facebook post references the elections of Gurdwara leaders or other elected officials. As the trial court observed, "[t]his case is no more about the general topic of the governance of the Sikh Gurdwara-San Jose than it is about the general topic of protecting children from drugs." Rather, as the trial court found, and our review of the record confirms, the speech at issue is about a drug business purportedly operating at the Gurdwara under respondents' power and influence, aided by the protection of their relatives in the district attorney's office and the police department.
Having identified the issue of public interest in the speech (the alleged drug business operating at the Gurdwara and its potential effects on Gurdwara members), we turn to the second part of the FilmOn test. This step "address[es] the specific nature of [the] speech and its relationship to the matters of public interest." (FilmOn, supra, 7 Cal.5th at p. 152.) There must be" 'some degree of closeness' between the challenged statements and the asserted public interest" in that" 'the statement must in some manner itself contribute to the public debate.'" (Id. at p. 150, quoting Wilbanks, supra, 121 Cal.App.4th at p. 898.) Public interest arguments "too tenuously tethered to the issues of public interest they implicate, and too remotely connected to the public conversation about those issues," do not come under the protections of the anti-SLAPP statute. (FilmOn, at p. 140.)
To assess the "degree of closeness" on the facts here, we compare them to relevant precedents. In a number of cases, courts have decided that, although the subject matter of the statements implicated matters of public importance or were made in a public forum, the statements arose in the context of a personal dispute that did not directly engage a public conversation. For example, in Bikkina v. Mahadevan (2015) 241 Cal.App.4th 70, the Court of Appeal considered whether the defendant's statements claiming the plaintiff had falsified data in research papers on carbon sequestration were made in connection with the public interest because the papers related to an issue of public concern, namely climate change. (Id. at p. 82.) The court rejected this theory of public interest, explaining that "the specific nature of the [defendant's] speech was about falsified data and plagiarism in two scientific papers, not about global warming." (Id. at p. 85.)
Similarly, in Bernstein, supra, 43 Cal.App.5th 15, the appellate court considered an altercation before a large audience at a bar between the plaintiff bartender and the defendant celebrity who, in a publicized incident, called the bartender "racist" and other names after being refused service. (Id. at p. 18.) The court emphasized that while public interest in "entertainers and other celebrities can create an issue of public interest for purposes of section 425.16, subdivision (e) [citation], it is the subject of the defendant's speech or conduct that determines whether an issue of public interest has been implicated for purposes of anti-SLAPP protection." (Id. at p. 23.) The court reasoned that there was no evidence the defendant's angry epithets against the bartender "addressed an ongoing controversy or an issue that had garnered any public interest before [he] lashed out." (Id. at p. 24.) Also, "the fact that [the defendant] used the word 'racist' . . . did not convert the statements into the type of speech entitled to anti-SLAPP protection." (Ibid.) The court concluded, in the absence of any showing that the bartender had been accused of racist behavior in the past, that the statements "were not intended to further any public debate on the issue of racism" but "were' "mere name calling" '" (ibid.) whose" 'slight reference to the broader public issue'" did not render the statements protected conduct. (Ibid., quoting FilmOn, supra, 7 Cal.5th at p. 152.)
Similarly, the Court of Appeal in Jeppson v. Ley (2020) 44 Cal.App.5th 845, examined whether a dispute between neighbors in which one neighbor posted a hostile message on a neighborhood blog implicated an issue of public interest. (Id. at pp. 848- 849.) Though the defendant asserted that his post had potentially reached a wide audience of 951 people and invoked an issue of public safety due to a restraining order against the plaintiff and his alleged ownership of guns, the court observed these were "attempts at abstraction" (id. at p. 856) and held "this neighborhood flap did not raise issues about the 'public interest,' even though it made an appearance on the Internet." (Id. at p. 857.)
These examples, in which the courts concluded the challenged statements bore only a loose connection to an issue of public interest, contrast with those which have come within the protection of the anti-SLAPP statute because they featured statements made in the context of active public controversies.
For example, in a defamation action brought by the former manager of a homeowners' association against several of the association members, the appellate court determined that statements published in a newsletter circulated to residents of the homeowners' association were made in connection with an issue of public interest. (Damon, supra, 85 Cal.App.4th at p. 479.) The statements concerned an active controversy about the group's form of governance, thus pertaining to an "inherently political question of vital importance to each individual and to the community as a whole," and furthermore "were made in connection with the Board elections and recall campaigns." (Ibid.)
So, too, the court in Sonoma Media Investments, LLC v. Superior Court (2019) 34 Cal.App.5th 24 concluded that newspaper articles about campaign contributions in a city council election, which allegedly implied that a local real estate developer had funded substantial, independent expenditures on behalf of several candidates, satisfied the public interest requirement under section 425.16(e)(4). (Id. at p. 35.) The court explained that not only are "elections in general, and the financing of political advertisements in particular . . . topics of widespread interest" which "affect large numbers of people" (ibid.), but the reporting at issue explained the connection between the real estate developer and the campaign contributions and raised questions about the source of the funds spent, supporting the ability of the electorate to make informed decisions. (Ibid.)
The evidence submitted in connection with Singh's anti-SLAPP motion shows that an estimated 300,000 Sikh reside in the Bay Area, and the Gurdwara, its activities, reputation, and leadership, are of prime importance to its 9,000 members. Dhillon and Bainiwal are elected members of the Parbandhak Committee who, at the times relevant to this lawsuit, were running for reelection in a deeply divided political contest for leadership of the Gurdwara. This evidence suggests that the broader topics of public interest that Singh argues apply here, namely "[t]he activities and character of the leadership at the Sikh Gurdwara in San Jose" may affect a "definable portion of the public." (Du Charme, supra, 110 Cal.App.4th at p. 118, italics omitted.)
But Singh has not presented evidence showing that the subject of his Facebook post (the alleged drug trade at the Gurdwara under Dhillon's and Bainiwal's authority and its protection by their relatives) is one of public interest to that community within the meaning of the anti-SLAPP statute. None of the potentially admissible evidence (Sweetwater, supra, 6 Cal.5th at p. 947) submitted in support of Singh's anti-SLAPP motion establishes that drug use or drug trafficking at the Gurdwara, under the alleged oversight of Dhillon and Bainiwal as members of the governing board, was a subject of public interest, discourse, or concern for the community.
The only reference in the record to an alleged drug problem at the Gurdwara, apart from Singh's Facebook post, is Singh's own declaration, including his largely hearsay description of the meeting he attended at a Milpitas Gurdwara, in which others stated their belief that drug sales were occurring, and his hearsay report about Mr. Kamaldeep's alleged acquisition of drugs at the Gurdwara in 2015. In considering this evidence for purposes of the anti-SLAPP motion, we may disregard "declarations that lack foundation or personal knowledge, or that are argumentative, speculative, impermissible opinion, hearsay, or conclusory." (Gilbert v. Sikes (2007) 147 Cal.App.4th 13, 26.)
Singh's conclusory assertion that he "believe[s]" that "Dhillon and Bainiwal have betrayed the Sikh religious teachings and are not stopping the sale of drugs at the Gurdwara" and further is "informed and believe[s]" that they are using family relationships to prevent law enforcement from investigating those criminal activities does not establish that his Facebook post on these topics addressed an actual issue of public interest for the local community before his post was published. (Compare Bernstein, supra, 43 Cal.App.5th at p. 24 [no evidence the defendant's racism accusations addressed a controversy involving the bar or an issue that had garnered any public interest before the defendant "lashed out"] with Damon, supra, 85 Cal.App.4th at p. 479 [newsletter publication concerned active controversy within the homeowners' association concerning the group's form of governance and recall campaigns].)
That "criminal and illegal activity" in community sectors is, generally speaking, a subject of public interest, does not render Singh's statements a matter of public concern for purposes of anti-SLAPP protection. "[S]imply because a general topic is an issue of public interest, not every statement somewhat related to that subject is also a matter of public interest within the meaning of section 425.16, subdivision (e)(3) or (e)(4)." (Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1253.) Indeed, "[a]lmost any statement, no matter how specific, can be construed to relate to some broader topic. But, '[t]he part is not synonymous with the greater whole.'" (Buschel, supra, 6 Cal.App.5th at p. 1106.) Moreover, that Singh's Facebook post may have reached a relatively large audience within the local Sikh community does not convert a matter of personal belief or opinion into an issue of public interest. (See Bernstein, supra, 43 Cal.App.5th at p. 24; Weinberg, supra, 110 Cal.App.4th at p. 1133 ["A person cannot turn otherwise private information into a matter of public interest simply by communicating it to a large number of people."].)
Because the evidence offered to illustrate community conversations and controversy concerning the Gurdwara pertained to the competing political parties and "power struggle" for leadership, not to drug sales occurring under the influence of Dhillon and Bainiwal and their relatives, or even to drug problems at the Gurdwara more generally, Singh's statements cannot be fairly construed as having "occur[red] in the context of an ongoing controversy, dispute or discussion." (Du Charme, supra, 110 Cal.App.4th at p. 119.) Furthermore, Singh does not demonstrate that the statements in the Facebook post bear any" 'degree of closeness'" (FilmOn, supra, 7 Cal.5th at p. 150) to the asserted public interest with respect to the activities and character of the leadership of the Gurdwara.
Singh's failure to show a connection between his Facebook post and any "public conversation on an issue of public interest" (FilmOn, supra, 7 Cal.5th at p. 153) distinguishes this case from those in which courts have found that allegations of criminal conduct by the leadership of a religious group or nonprofit organization are protected by the anti-SLAPP statute. (See e.g., Terry v. Davis Community Church (2005) 131 Cal.App.4th 1534 (Terry) and Briganti v. Chow (2019) 42 Cal.App.5th 504 (Briganti).)
In Terry, for example, the appellate court affirmed the grant of the defendants' anti-SLAPP motion after concluding in relevant part that statements published in a report read by over 100 church members which accused the church's youth group leaders of inappropriate sexual contact with a minor member of the youth group "involved issues of public interest, because they involved the societal interest in protecting a substantial number of children from predators." (Terry, supra, 131 Cal.App.4th at p. 1547.) Significantly, in Terry, the statements referred to specific incidents involving the youth group leaders and the minor girl, which incidents were referred to the police for investigation and were documented in an internal report of the church governing body's investigative committee following a formal complaint by the parents of a youth group church member. (Id. at pp. 1539-1540.)
Singh argues that his "sincerely held belief that the leadership at the Gurdwara is turning a blind eye to drug sales" is similar to the report about the youth group leaders' inappropriate relationship with the girl in Terry, because both concern an issue of public interest (i.e., protecting children in the community from illegal activities). This argument fails to acknowledge that in Terry, the statements in the reports were directly connected with the issue of public concern for the community, and that the report issued by the church's investigative committee" 'itself contribute[d] to the public debate'" (FilmOn, supra, 7 Cal.5th at p. 150) about whether the youth group leaders posed a danger to the community's youth. Unlike Terry, here there is no" 'degree of closeness'" (ibid.) between Singh's isolated statements accusing Dhillon and Bainiwal of overseeing or allowing drug sales at the Gurdwara and the issue of public interest to the Sikh community concerning leadership of the Gurdwara, and no evidence that Singh's statements contributed to or furthered discourse about those issues.
So too in Briganti, and in another case cited by Singh, Chaker, supra, 209 Cal.App.4th 1138, the reviewing court determined that the alleged defamatory statements were part of the public discourse about an issue of public concern. In Briganti, the appellate court observed that the statements posted on Facebook, which warned about the plaintiff's alleged" 'widespread pattern of identity theft and multi-level marketing scams'" as a self-described motivational speaker," 'would be "of concern to a substantial number of people." '" (Briganti, supra, 42 Cal.App.5th at p. 508.) In Chaker, the court concluded that the allegedly defamatory comments-which were posted on a consumer review website and separately on a social networking Web site- "plainly f[e]ll within the rubric of consumer information" about the plaintiff's forensics business (Chaker, at p. 1146) and sought to warn consumers about his trustworthiness (ibid.), while the comments on the social networking site similarly informed participants who had "a legitimate interest in knowing about his character before engaging him on the Web site." (Id. at pp. 1146-1147.)
Thus, the statements that formed the basis for the defamation claims in both Briganti and Chaker were "made in connection with" (§ 425.16, subd. (e)(2)) the issue of public interest concerning each plaintiff's trustworthiness in their business and/or personal realm, whereas here we perceive Singh's statements to be disconnected and isolated from the issue or issues of public concern that the evidence demonstrates (apart from Singh's own conclusory statements) form part of the public discourse about the Gurdwara and its leadership.
In sum, despite Singh's insistence that his Facebook post "was not meant to be taken literally" and that his speech is "hyperbole intended to make a point" about the Gurdwara's leaders failing to enforce the Sikh code of conduct, the words forming the speech are central in deciding whether the statements were part of or furthered the public discourse, or were "too remotely connected to the public conversation about those issues, to merit protection" under the anti-SLAPP statute. (FilmOn, supra, 7 Cal.5th at p. 140.) Singh's statements asserting Dhillon's and Bainiwal's alleged operation of a drug trade "in full swing" at the Gurdwara lacked a nexus to any broader public conversation about illegal drugs. Singh's evidence did not establish that his statements contributed to or furthered discourse on an ongoing discussion or controversy in the local Sikh community. For these reasons, we conclude the Facebook post was not "in connection with" a public issue or issue of public interest and did not qualify for anti-SLAPP protection. (§ 425.16, subd. (b)(1), (e)(3), (4).) The trial court correctly decided that Singh's anti-SLAPP motion failed to make the necessary showing under step one of the statutory analysis, and we affirm the trial court's order on that basis.
We therefore need not assess the merits of respondents' defamation claim, including the issue of whether they are limited purpose public figures. We express no opinion on those questions.
3. Motion for Sanctions and Attorney Fees
During the pendency of this appeal, after Singh filed his reply brief, respondents filed the sanctions motion, which they bring jointly and severally against Singh and his attorney, Omair M. Farooqui.
Respondents assert two grounds for the motion. They argue that the appeal is premised on evidence that was improperly designated as part of the record on appeal (though it was never before the trial court), then manipulated by Farooqui in the opening brief so as to mislead this court. They point out, by way of example, that although Singh correctly responded "No" on the civil case information statement regarding whether "a motion for new trial, . . . [or] for reconsideration . . . [was] made and denied," in Singh's opening brief, the statement of appealability recites that Singh "seeks review" not only of the anti-SLAPP motion and evidentiary objections but also of the trial court's "denial of Appellant's Motion for Reconsideration." Respondents point to no fewer than nine instances in Singh's opening brief in which he improperly cites to or relies upon evidence from the motion for reconsideration, including by claiming that the trial court failed to recognize Dhillon and Bainiwal as public figures despite their purported "admissions" in another case, and misquotes the material from that unrelated case. Respondents maintain that the motion for reconsideration provides "the underlying foundation upon which this frivolous appeal is built on" and is "extensively referenced, inextricably interwoven, and repetitively argued throughout the [appellant's opening brief]."
Respondents also argue that the appeal is time consuming, dilatory, and appears to have been filed solely to annoy and harass, and to delay judgment in the case. They assert that during the litigation, and in several instances during the course of the appeal, Singh engaged in delay tactics with respect to filing deadlines and requested extensions of time. For example, after requesting and obtaining an extension of time to file a responsive pleading to the complaint, Singh filed an answer and general denial, yet later (after respondents had propounded written discovery requests) filed the anti-SLAPP motion, thereby staying all further action in the case. Respondents further contend that Singh's appeal fails to conform in many instances to the appellate rules of court, particularly by asserting facts (i.e., "Appellant's statement on Facebook was just one of many such statements being circulated in the Sikh and San Jose Gurdwara community") without reference to the record, contrary to the requirement set forth in California Rules of Court, rule 8.204(a)(1)(C), which required respondents' counsel as well as this court in other instances to comb through various record citations in search of the proclaimed factual support.
Having considered respondents' arguments in light of the record and applicable law, we agree that Farooqui's designation for inclusion in the appellate record of evidence filed in the trial court in support of the motion for reconsideration, after the trial court issued the order that is the subject of this appeal, his heavy reliance on evidence from the motion for reconsideration, and his misleading references to the trial court's purported "failure" to consider evidence that was never before it, is concerning. But we do not believe this conduct warrants the sanction requested. Nor do we believe that the alleged dilatory and other tactics employed by Singh or his counsel amount to sanctionable conduct under the circumstances presented.
Section 907 provides, "When it appears to the reviewing court that the appeal was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just." (§ 907.) California Rules of Court, rule 8.276(a) authorizes imposition of sanctions on a party or an attorney for conduct, including "(1) Taking a frivolous appeal or appealing solely to cause delay; [¶] (2) Including in the record any matter not reasonably material to the appeal's determination." (Cal. Rules of Court, rule 8.276(a).)
The California Supreme Court has defined a frivolous appeal in terms of motive and merit, or stated differently, by a subjective and objective standard. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 649 (Flaherty).) Both considerations are relevant to determining where an appeal is a frivolous appeal. (Id. at p. 650.) "Thus, an appeal should be held to be frivolous only when it is prosecuted for an improper motive-to harass the respondent or delay the effect of an adverse judgment-or when it indisputably has no merit-when any reasonable attorney would agree that the appeal is totally and completely without merit." (Ibid.) Furthermore, to avoid chilling the assertion of a litigant's rights on appeal, the sanctions power "should be used most sparingly to deter only the most egregious conduct." (Id. at pp. 650-651.)
Here, Singh's counsel included in the record material that is not properly before this court on appeal. The attempt to rely on this material contravenes the requirement that an appellant's opening brief must "[p]rovide a summary of the significant facts limited to matters in the record." (Cal. Rules of Court, rule 8.204(a)(2)(C), italics added.) The strategic reliance on this material on appeal raises questions about Singh's and Farooqui's subjective motivations in including the material in the appeal.
Yet the objective merits of the appeal, taken as a whole, cannot be said to "indisputably" have no merit. (Cf. Flaherty, supra, 31 Cal.3d at p. 650.) What constitutes a public issue under section 425.16 is an active subject of litigation, both in the Courts of Appeal and in the California Supreme Court. In light of the complexity of the statutory analysis, we cannot say Singh's arguments are indisputably meritless. "Counsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win on appeal." (Flaherty, at p. 650.) We decide that Singh's appeal of the trial court's denial of the anti-SLAPP motion does not, viewed objectively, amount to a frivolous appeal. For that reason, we deny respondents' sanctions motion.
III. DISPOSITION
The trial court's order denying Singh's special motion to strike under Code of Civil Procedure section 425.16 is affirmed. Respondents Dhillon and Bainiwal are entitled to recover their reasonable costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
WE CONCUR: Bamattre-Manoukian, Acting P.J. Wilson, J.