Opinion
G055066
04-12-2018
ROSARIO ANTOINETTE PEREZ-RITCHIE, Plaintiff and Respondent, v. ROBERT AGUILAR, JR., Defendant and Appellant.
Law Offices of D. Michael Bush and D. Michael Bush for Defendant and Appellant. Westrup & Associates and R. Duane Westrup for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2016-00887815) OPINION Appeal from an order of the Superior Court of Orange County, Craig L. Griffin, Judge. Affirmed. Law Offices of D. Michael Bush and D. Michael Bush for Defendant and Appellant. Westrup & Associates and R. Duane Westrup for Plaintiff and Respondent.
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Defendant Robert Aguilar, Jr., appeals from the denial of his special motion to strike (anti-SLAPP motion; Code Civ. Proc., § 425.16; all further statutory references are to this code) the complaint of plaintiff Rosario Antoinette Perez-Ritchie. He argues the court erred in finding the claims did not arise from protected activity. We disagree and affirm.
FACTS AND PROCEDURAL HISTORY
Plaintiff was the director of the Miss Seal Beach pageant (Pageant) and a real estate agent. In 2016 she was named the Seal Beach Chamber of Commerce Business Woman of the Year.
In November 2016 plaintiff filed a complaint for libel per se against defendant, which alleged that in March 2016 defendant sent messages to a 17-year-old contestant in the Pageant, causing the contestant concern. When plaintiff was informed, she e-mailed defendant asking that he stop contacting the contestant. According to the complaint, thereafter defendant apologized to plaintiff, explaining "he had no ill intent in sending the messages." Allegedly, defendant then started sending e-mails to business and social contacts of plaintiff stating, "I have now made it my mission to end [plaintiff's] career and life in this town" (Mission E-mail).
The complaint alleged the text of another of defendant's e-mails sent in November 2016 to Lisa Landau (Landau), at one point a friend of both plaintiff and defendant. It stated, "That bully story is really sad, but I find it ironic that [Miss Seal Beach] is run by one of the biggest bullies and liars in town and this year's [Miss Seal Beach] is learning her trade. I know you're a good person Lisa[;] I wish you could see what we all see. The Female business woman of the year doesn't even have a valid license to sell real estate because it was revoked in May AGAIN! 2 shoplifting convictions which wouldn't be acceptable to merchants in the chamber who battle shoplifters every day, AND 70 yes 7-0 counts of insurance fraud? [¶] I wish you and Cody would separate yourself from her before this all blows up. And I promise it will" (Bully E-mail; collectively defendant's e-mails).
Neither party has explained the "bully story." Apparently the Miss Seal Beach organization had a campaign to stop bullying.
There is some dispute about when the two e-mails were sent. Defendant acknowledged at least three times in his declaration in support of the anti-SLAPP motion that the Bully E-mail was sent on November 4, 2016. He also stated the Mission E-mail was sent November 11, 2016. This was confirmed by Landau in her declaration in opposition to the anti-SLAPP motion.
In that same declaration Landau stated the Bully E-mail was a Facebook message dated August 15, 2016. In his declaration in support of his reply to plaintiff's opposition to the anti-SLAPP motion defendant now "agree[d]" he sent the Bully E-mail on Facebook in August 2016.
Defendant spent an inordinate amount of time arguing the August date was significant. It does not support his position. If anything it casts doubt on his explanation of why he sent the Bully E-mail as noted below.
The complaint alleged the recipient of the Bully E-mail understood it referred to plaintiff and anyone reading it would understand it meant plaintiff was "a felon selling real estate without a license." The complaint pleaded the statements were false and libel per se. Plaintiff alleged on information and belief defendant made the statements knowing they were false or in reckless disregard for their truth to "undermine Plaintiff's reputation as a real estate salesperson and director of the Miss Seal Beach Pageant," causing her damages.
Defendant filed an anti-SLAPP motion claiming the Bully E-mail concerned a matter of public interest. He argued the Pageant was "a major annual event for the City of Seal Beach," "involv[ing] contestants, local businesses and leaders of the community." He also claimed plaintiff's management of the Pageant, including whether plaintiff was personally using donations to Miss Seal Beach, was a matter of public interest.
In his declaration, much of which contained irrelevant information, defendant stated he sent the Bully E-mail because a friend told him in October 2016 that the Seal Beach Sun News wanted information regarding plaintiff's history with the California Bureau of Real Estate (BRE) in connection with a criminal filing in a workers' compensation case. He further stated the BRE action involved a stipulation in a disciplinary action based on shoplifting. Defendant thought the newspaper story "would be big, based on [plaintiff's] prominence in the community and the importance of the . . . [P]ageant."
Plaintiff filed objections to almost the entirety of defendant's declaration. The court overruled all but one objection.
The BRE was formerly known as the Department of Real Estate. (Ryan-Lanigan v. Bureau of Real Estate (2013) 222 Cal.App.4th 72, 74, fn. 1.)
Defendant also stated that in November 2016 he lost a local school board election. At the same time he heard plaintiff was applying for nonprofit status of Miss Seal Beach under Internal Revenue Code section 501(c)(3) (26 U.S.C. § 501(c)(3) (501(c)(3)). Defendant then realized that, having lost his election, he could "be a community advocate, by doing what [he] could to get truthful information [about plaintiff] out to the public." Defendant thought it possible plaintiff could be using Miss Seal Beach funds for her own benefit if there was insufficient oversight of the organization.
In denying the motion the court issued a lengthy minute order explaining why it found defendant had not met his burden to show the libel cause of action arose from protected activity. It found the Bully E-mail was not made in a public forum. In addition, it found the Bully E-mail was not conduct in furtherance of the rights of free speech concerning a public issue or an issue of public interest. There was insufficient evidence to show the Bully E-mail concerned either someone in the public eye, conduct directly affecting a large number of people, or a topic of broad public interest. The court did not decide whether or not plaintiff had a probability of prevailing in the action.
DISCUSSION
1. Defendant's Briefs
Preliminarily we must comment on the deficiencies in defendant's briefs. The opening brief fails to provide a "summary of the significant facts limited to matters in the record." (Cal. Rules of Court, rule 8.204(a)(2)(C); all further references to rules are to the California Rules of Court.) There is no separate section summarizing the facts; facts are included throughout the entire brief. Defendant apparently assumed we would sift through and pick out those necessary to our analysis. Defendant included an enormous amount of evidence, often without any argument as to its relevance, sometimes making it difficult to grasp the substance of his claims. Further, we will not consider any evidence or documents that are not included in the record, including the exhibits to the opening brief. (Ibid.)
Most of defendant's arguments are not supported by authority or reasoned legal argument, in violation of rule 8.204(a)(1)(B). The briefs were confusing, rambling, and difficult to follow. Although the briefs contain headings, arguments often are mixed indiscriminately throughout, many repeated a number of times under various headings, significantly hindering our review. It may well be that we will inadvertently overlook an argument under an incorrect topic heading.
Failure to comply with the court rules is a ground for forfeiture of claims. (Provost v. Regents of University of California (2011) 201 Cal.App.4th 1289, 1294.) Nevertheless, to the extent we understand the claims and they are otherwise proper, we will consider them. If defendant intended to make any other arguments or claims they are forfeited for lack of separate headings, authority, or reasoned legal argument. (Ibid. ["we do not consider all of the loose and disparate arguments that are not clearly set out in a heading and supported by reasoned legal argument"].) 2. Anti-Slapp Principles and Standard of Review
Section 425.16, subdivision (b)(1) provides a party may bring a special motion to strike any "cause of action against [that party] arising from any act [the party commits] in furtherance of the . . . right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue . . . ." An "'act in furtherance of a person's right of . . . free speech under the United States or California Constitution in connection with a public issue' includes: . . . any written or oral statement or writing made in . . . a public forum in connection with an issue of public interest[] or . . . any other conduct in furtherance of the exercise of the constitutional right of . . . free speech in connection with a public issue or an issue of public interest." (§ 425.16, subd. (e)(3), (4).)
"The court must engage in a two-step analysis under this section. First it has to determine whether the defendant has met his burden to show '"that the challenged cause of action is one arising from protected activity."' [Citation.] If so, the burden shifts to the plaintiff[] to show the likelihood of prevailing on the claim. [Citation.]" (Rivera v. First DataBank, Inc. (2010) 187 Cal.App.4th 709, 714-715.) "In deciding whether the initial 'arising from' requirement is met, a court considers 'the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.' (§ 425.16, subd. (b).)" (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.)
We review an order denying an anti-SLAPP motion de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325-326.) 3. Issue of Public Interest
a. Meaning of Issue of Public Interest
Defendant claims the Bully E-mail was sent in connection with issues of public interest. We disagree.
Defendant also cursorily argued the Bully E-mail was sent in connection with an issue under consideration by a governmental body or an official, authorized proceeding. (§ 425.16, subd. (e)(2).) This argument is forfeited. Defendant did not rely on this subdivision in his anti-SLAPP motion or in any argument in the trial court. He may not raise it for the first time on appeal. (Hunter v. CBS Broadcasting, Inc. (2013) 221 Cal.App.4th 1510, 1526.)
The trial court found defendant's e-mails were not made in a public forum. Defendant did not appeal that finding.
Public interest is not defined by statute but there is a large body of case law defining the term. Weinberg v. Feisel (2003) 110 Cal.App.4th 1122 (Weinberg) provides a good summary of "guiding principles." (Id. at p. 1132.)
"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. [Citations.]" (Weinberg, supra, 110 Cal.App.4th at pp. 1132-1133.)
In addition, in cases holding the issue was of public interest, "the subject 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 State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 924 (Rivero).)
b. No Issues of Public Interest
Defendant argues there were several issues of public interest. We disagree. Defendant's e-mails did not concern a person, entity, or topic of widespread public interest. There is no evidence of any widespread interest in Miss Seal Beach, the Pageant, or plaintiff. At best defendant's e-mails may have been of interest to a small segment of society, perhaps those interested in the Pageant or the female businesswoman of the year award, although defendant fails to provide evidence of any such interest.
Defendant lists a number of people and entities he claims have such an interest. These include the press, Pageant contestants and their parents, those associated otherwise with the Pageant, the Internal Revenue Service, the BRE, the California Attorney General and Secretary of State, and the Seal Beach Chamber of Commerce and police department. But defendant points to no evidence any of them have such an interest. Instead, he merely speculates they "may" have an interest, "would be interested" or "would want to know." This is not sufficient to show defendant's e-mails were protected activity.
Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107 (Du Charme) is instructive. There the statement in question was a posting on a labor union Web site stating the local's business manager had been terminated. The court held this was not a matter of public interest for purposes of an anti-SLAPP motion. (Id. at p. 119.) It concluded that to satisfy the first prong of the anti-SLAPP analysis, where the issue is of interest to only a small but definable part of the public such as a private 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 matter of public significance." (Ibid., italics omitted; accord Hailstone v. Martinez (2008) 169 Cal.App.4th 728, 738.)
In Du Charme, the court characterized communications about a 3,000-member homeowners association (Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468) and a 10,000-member union (Macias v. Hartwell (1997) 55 Cal.App.4th 669) as being of only limited public interest. (Du Charme, supra, 110 Cal.App.4th at p. 118.) We have no evidence of the size of the community defendant claims is interested in defendant's e-mails, but it is not unreasonable to conclude it is not 10,000 or even 3,000 people. According to plaintiff there are only 12 contestants in the Pageant. Further, as discussed below, plaintiff is not a public figure, and there was no ongoing controversy concerning the topics in the e-mails.
Defendant contends the public and law enforcement have an interest in a felon selling real estate without a license. But there is no evidence of any such interest. Defendant did not notify law enforcement and points to nothing in the record that felony charges are currently or were then pending. In fact, in his declaration in support of the anti-SLAPP motion defendant stated: "For the record: [¶] . . . I know of no information whatsoever that [plaintiff] ever sold real estate without a license[ or] [¶] . . . that [plaintiff] was convicted of a felony."
Defendant asserts the revocation of plaintiff's real estate license is "per se a matter of public interest." Defendant is wrong. As background, the record contains a stipulation between plaintiff and the BRE and order thereon in May 2016 settling a claim against plaintiff. The claim was based on a petty theft conviction in 2014. The BRE revoked plaintiff's real estate license and provided a restricted license would be issued on plaintiff's application within 90 days.
The stipulation also noted plaintiff had a prior misdemeanor shoplifting conviction in 2002.
This was a fait accompli at the time defendant sent defendant's e-mails. Thus, even if the public at one time had an interest, it would have been only a limited community, and at the time of defendant's e-mails, there was no ongoing controversy requiring public participation. (Du Charme, supra, 110 Cal.App.4th at p. 119.)
We reject defendant's assertion that because plaintiff submitted no evidence a restricted license had been issued, the status of her license was still under consideration and thus an ongoing controversy.
Defendant also refers to the 70 insurance fraud counts filed against plaintiff in 2008. The record shows plaintiff agreed to plead guilty to one count, which was allowed to be withdrawn with the case dismissed upon her payment of $50,000. Defendant claims it is a matter of public interest why insurance fraud was not the basis of the BRE complaint and makes some suggestions about the reason.
This is pure speculation and a seeming attempt by defendant to manufacture public interest. This plea was old news, years' old, and there is no evidence of any ongoing controversy.
Nor is there any evidence of public interest or an ongoing controversy regarding the Seal Beach Chamber of Commerce naming plaintiff as its businesswoman of the year, even given what defendant characterizes as plaintiff's "recent criminal history and real estate license revocation." It does not matter that the award might have been given within a few days after defendant's e-mails. Defendant's opinion that the Seal Beach "Chamber of Commerce is one of the most influential organizations in town" does not make its businesswoman of the year award a matter of public interest under section 425.16.
Likewise, there is no evidence supporting defendant's speculation that whether Miss Seal Beach is a legitimate 501(c)(3) tax-exempt organization is a matter of public interest. This was not the subject of either of defendant's e-mails, in violation of the principle there should be closeness between the statements and the alleged public interest. (Weinberg, supra, 110 Cal.App.4th at p. 1132.) Defendant has not pointed to any evidence of public interest in this topic, only, apparently, his desire there should be. The fact defendant was "questioning the non-profit tax status of Miss Seal Beach" in connection with the BRE action, insurance fraud counts, and other things does not show anybody else was.
Contrary to defendant's argument, the degree of closeness refers to the similarity of the topic of the communication and the public interest and has nothing to do with the date the e-mails were sent.
The only evidence defendant has of anything even resembling a public controversy is the hearsay claim in his declaration in support of the anti-SLAPP motion that the Seal Beach Sun News wanted information regarding plaintiff's history with the BRE as to a criminal filing in connection with a workers' compensation action and/or a disciplinary action in connection to "repeated incidents of shoplifting." Defendant claims information was provided to the newspaper. However, there is no evidence any story ever appeared. Nor is there any other evidence of any ongoing controversy. (Du Charme, supra, 110 Cal.App.4th at p. 119.)
Apparently in connection with this claim, defendant asserts "newsgathering" is a matter of public interest. The extent of this argument consists of listing some e-mails, not defendant's e-mails, sent during two different time periods. Defendant fails to state the relevance or importance of these e-mails and also fails to make any reasoned legal argument on this issue. He also neglects to show why "newsgathering" itself is a matter of public interest. This argument has no merit, and is also forfeited for the reasons set forth above.
c. No Public Figure
As noted, an issue can be a matter of public interest if the statements are made about someone in the public eye, i.e., a public figure. (Rivero, supra, 105 Cal.App.4th at p. 924.) The evidence does not show plaintiff is a public figure.
"[A] public figure is a person who has assumed a role of special prominence in the affairs of society, who occupies a position of persuasive power and influence, or who has thrust himself [or herself] to the forefront of a particular public controversy in order to influence the resolution of the issues involved." (Weinberg, supra, 110 Cal.App.4th at p. 1131.)
Defendant asserts plaintiff voluntarily made herself a public figure by heading up the Pageant. He quotes a statement made by plaintiff where, in describing her role as director of Miss Seal Beach, she stated she mentors 12 young women who serve as community ambassadors. She also said the program is respected by the city, police department, local business owners, and the school district. Citing Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1260, defendant asserts these statements "'invite attention and comment.'"
This argument fails on several counts. Plaintiff's statement was in a letter submitted in connection with her request to terminate probation in January 2016. It was not a public relations or advertising piece. In addition, as director of Miss Seal Beach, plaintiff did not have particular power, prominence or influence in society at large. Nor is there any evidence plaintiff put herself at the front of a public controversy to wield influence on its outcome.
Moreover, the facts in Jackson v. Mayweather are very different. There the court found the defendant's statements on social media and in radio interviews, described as "'celebrity gossip,'" were protected under section 425.16. (Jackson v. Mayweather, supra, 10 Cal.App.5th at p. 1254.) The defendant was a former professional boxing champion and the plaintiff was a model and actress and his former girlfriend. The parties were described by the court as "a highly publicized celebrity couple for a number of years." (Id. at p. 1246.) The facts here are not remotely similar.
We are not persuaded by defendant's argument that because plaintiff is licensed by the BRE "she opened the door to 'public attention or media coverage.'" If we accepted this theory every licensed person would become a public figure. That is well beyond the limits of what puts someone in the public eye.
Likewise, plaintiff did not become a public figure because she put an ad for her real estate business on the Miss Seal Beach Web site. That a Web site may be "part of today's town square" does not mean using one makes a person a public figure. Similarly, a newspaper article from 2011 that plaintiff was "resurrect[ing]" the Pageant does not make her a public figure for purposes of this action.
In sum, the court correctly decided defendant's e-mails were not protected activity under section 425.16. 4. Sanctions
Plaintiff included a request for sanctions in her reply brief. This was not sufficient to raise the issue; she was required to file a separate motion. (Rule 8.276(a); Saltonstall v. City of Sacramento (2014) 231 Cal.App.4th 837, 858-859.)
DISPOSITION
The order is affirmed. Plaintiff is entitled to costs on appeal.
THOMPSON, J. WE CONCUR: O'LEARY, P. J. IKOLA, J.