Opinion
A166884
05-06-2024
PATRYCJA SAYARAD, Plaintiff and Appellant, v. BLYTH BUTLER-LOPEZ, Defendant and Respondent.
NOT TO BE PUBLISHED
(Alameda County Super. Ct. No. 22CV013251)
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Patrycja Sayarad sued Blyth Butler-Lopez and four other defendants for defamation, harassment, and conspiracy. Butler-Lopez filed a special motion to strike the complaint under California's anti-SLAPP (strategic lawsuit against public participation) statute, Code of Civil Procedure section 425.16. The trial court granted the anti-SLAPP motion, concluding the claims arose out of protected activity because Butler-Lopez's statements were made in a public forum concerning the public interest, and Sayarad failed to show a probability of prevailing. The court also partially granted Butler-Lopez's motion for attorney fees and denied Sayarad's motion for sanctions under section 128.5. Sayarad appeals.
Undesignated statutory references are to the Code of Civil Procedure. We omit references to other defendants who are not parties to this appeal.
We reverse the trial court's order on the anti-SLAPP motion because the statements in the complaint do not concern the public interest as required by section 425.16, subdivision (e). We also reverse the court's award of attorney fees and dismiss Sayarad's appeal from the denial of her request for sanctions.
I. BACKGROUND
A. The Complaint
Sayarad, a real estate agent, alleged Butler-Lopez and the other defendants targeted her in a conspiracy to harass and defame her. According to the complaint, Butler-Lopez "published to third parties verbally and in writing" various false statements implicating Sayarad in a wide range of unlawful conduct, including stalking, theft, prostitution, child molestation, harassment, defamation, and conspiracy to commit murder. Among those statements, Butler-Lopez falsely claimed that Sayarad "committed identity theft by obtaining Butler-Lopez's personal information under the guise of being her real estate agent." Sayarad also asserted that based on one or more of those false statements, Butler-Lopez called the police on her, reported her to "Child Protective Services" or the "Realtor Board," and persuaded others to do the same. Additionally, Sayarad alleged Butler-Lopez published defamatory comments on another defendant's public Facebook post that purported to be "an apology" to Butler-Lopez but was used as a "vehicle to attack" Sayarad.
The complaint notably lacks specific information about the content of the underlying statements and about the relationships, if any, between the parties.
In her defamation cause of action, Sayarad alleged that Butler-Lopez failed to exercise reasonable care in making the statements and anyone who heard them "reasonably understood" that Sayarad had committed a crime. She also alleged that Butler-Lopez's conduct caused her to incur expenses, harmed her business and reputation, and caused her shame. Sayarad's harassment cause of action alleged Butler-Lopez committed a willful pattern of conduct aimed at her that seriously alarmed, annoyed, or harassed her without legitimate purpose. That conduct included stalking, making harassing calls, sending harassing correspondence, and falsely reporting her to third party agencies with malice causing substantial emotional distress. Sayarad's conspiracy cause of action alleged all defendants were aware of and agreed to each other's plans to defame and harass her.
B. The Motions
Butler-Lopez filed an anti-SLAPP motion to strike the complaint under section 425.16, asserting the claims were based on "public statements of her opinions and experiences regarding communications with law enforcement and child protective services." She argued the statements, whether in online forums or private communications, constituted consumer protection information protected under section 425.16, subdivision (e)(3) and (4). She also contended Sayarad could not establish a probability of prevailing on (1) the defamation claim because the statements were either true or nonactionable opinions, or (2) the derivative claims for harassment and conspiracy because they were based on the same statements as the defamation claim. Butler-Lopez did not submit any evidence in support of her motion.
In opposition, Sayarad argued Butler-Lopez failed to show the alleged statements underlying each claim were protected speech as required by section 425.16. She also argued the complaint alleged sufficient facts to demonstrate the viability of her lawsuit. Sayarad attached two exhibits to her opposition, but she did not submit a declaration laying a foundation for those exhibits. In her one-page reply, Butler-Lopez maintained that Sayarad had not established a probability of prevailing and failed to submit any evidence in support of her claims.
Sayarad also provided a witness declaration after the hearing on the motion. The court deemed that declaration untimely and did not consider it.
The trial court granted the motion. It noted that the private messages and comments made on social media fell within the ambit of section 425.16, subdivision (e)(4). The court found that "[a]lthough the relationship between [Sayarad] and each of the Defendants is unclear, these comments nonetheless affect the network of Defendants who have allegedly acted in concert to draw attention to certain issues about [Sayarad] among themselves and to the public, whether true or not. Thus, these statements concern the public interest and the vagueness of the allegations in the Complaint supports a reading that the alleged statements . . . arose out of" the protected activity of communicating with law enforcement or child protective services. The court also held Sayarad did not meet her burden to show a probability that she would prevail on the claims because she offered no evidence beyond the complaint to establish a likelihood of success.
Sayarad had also moved for sanctions against Butler-Lopez under section 128.5 for filing a frivolous special motion to strike. The trial court denied the motion. Thereafter, Butler-Lopez moved for attorney fees and costs under section 425.16, subdivision (c). The trial court partially granted the motion, awarding Butler-Lopez $42,031.50 in attorney fees. Sayarad appealed.
II. DISCUSSION
A. Special Motions to Strike
The anti-SLAPP statutewas enacted to address so-called strategic lawsuits against public participation. The statute "makes available a special motion to strike meritless claims early in litigation-but only if the claims arise from acts in furtherance of a person's 'right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.'" (FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 139 (FilmOn).)
An anti-SLAPP motion involves a two-step process: "First, 'the moving defendant bears the burden of establishing that the challenged allegations or claims "aris[e] from" protected activity in which the defendant has engaged.' [Citation.] Second, for each claim that does arise from protected activity, the plaintiff must show the claim has 'at least "minimal merit."' [Citation.] If the plaintiff cannot make this showing, the court will strike the claim." (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009 (Bonni).)
Three categories of protected activity are relevant here: "(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, . . . (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." (§ 425.16, subd. (e).)
We review a special motion to strike de novo and "exercise independent judgment in determining whether . . . the challenged claims arise from protected activity." (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067.) In making our determination, we "consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." (§ 425.16, subd. (b)(2).)
B. First Prong: Protected Activity
Under the first prong, we" 'consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.' [Citation.] The defendant's burden is to identify what acts each challenged claim rests on and to show how those acts are protected under a statutorily defined category of protected activity." (Bonni, supra, 11 Cal.5th at p. 1009.)" 'Allegations of protected activity that merely provide context, without supporting a claim for recovery, cannot be stricken'" because they are not subject to section 425.16. (Bonni, at p. 1012.)
1. Issue of Public Interest Under Section 425.16, Subdivision (e)(3) and (4)
The only actions undertaken by Butler-Lopez that form the basis for liability under the causes of action alleged in the complaint are the false statements she published to third parties, her communication with law enforcement, and posting defamatory statements on Facebook. Sayarad argues Butler-Lopez did not meet her burden under the first prong because she failed to show how the claims in the complaint arose from protected activity under section 425.16, subdivision (e). We agree.
Section 425.16, subdivision (e)(3) and (4) are both "limited by the requirement that the statement . . . be connected with an issue of public interest." (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 898.) In FilmOn, our Supreme Court articulated a two-part test to determine whether a statement was made in connection with an issue of public interest. (FilmOn, supra, 7 Cal.5th at pp. 149-150.) First, the court determines what public issue the statements implicate by looking at the content of the statements. (Id. at p. 149.) Second, the court looks "to the 'functional relationship' between the challenged activity and the public issue it implicates, and ask[s] whether the activity contributed to public discussion of that issue." (Geiser v. Kuhns (2022) 13 Cal.5th 1238, 1246.) Statements of public interest generally concern three broad categories: (1) a person or entity in the public eye, (2) conduct that could directly affect a large number of people beyond the direct participants, or (3) a topic of widespread public interest. (Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 621.)
Section 425.16, subdivision (e)(3) only applies to statements made "in a place open to the public or a public forum." It is undisputed that Facebook is a public forum. (Balla v. Hall (2021) 59 Cal.App.5th 652, 673.)
Here, we cannot conclude that Butler-Lopez's statements fall within any of these three categories. For one, nothing in the record establishes that Sayarad is a person in the public eye. Second, the statements-which include claims that Sayarad slept with older men for money, molested her own child, stalked Butler-Lopez by driving to her home, and stole credit cards from her wallet-do not involve topics of widespread public interest or contribute to any public debate. And the statements only affected a few people beyond the defendants. (Woodhill Ventures, LLC v. Yang (2021) 68 Cal.App.5th 624, 631-634; Jeppson v. Ley (2020) 44 Cal.App.5th 845, 856-857.)
Butler-Lopez's arguments to the contrary are not persuasive. She contends, for example, that the statements are matters of public interest because they concern identity theft, child abuse, stalking, and conspiracy to commit murder. It is not enough, however, that" 'the statement refer to a subject of widespread public interest; the statement must in some manner itself contribute to the public debate.'" (FilmOn, supra, 7 Cal.5th at p. 150.) The key question is whether Butler-Lopez-through these statements- "participated in, or furthered, the discourse that makes an issue one of public interest." (Id. at p. 151.) While the topics of identity theft and child abuse are generally considered topics of widespread public interest (Briganti v. Chow (2019) 42 Cal.App.5th 504, 508-509; M. G. v. Time Warner, Inc. (2001) 89 Cal.App.4th 623, 626-627), these statements, as presented in the complaint, did not further the discourse on these topics.
Sayarad alleged that Butler-Lopez published various false statements about her to third parties and posted defamatory comments on a Facebook post that purported to be "an apology" to Butler-Lopez but was instead used as "a vehicle to attack" Sayarad. There is, however, insufficient information in the complaint to understand the post's contribution-if any-to the public discussion on child abuse, stalking, conspiracy to commit murder, or identity theft. Butler-Lopez fails to demonstrate that she sought public discussion on issues of public interest with her Facebook comments or her statements about Sayarad. Rather, the complaint alleges that Butler-Lopez, along with the other defendants, sought to attack Sayarad in their personal spat against her. (See Woodhill Ventures, LLC v. Yang, supra, 68 Cal.App.5th at pp. 629634 [statements on social media were aimed to "whip up a crowd for vengeful retribution," not to discuss issue of public interest].)
We are also not persuaded that the statements constitute consumer protection information within the meaning of section 425.16, subdivision (e)(3). Generally, consumer protection information is considered a matter of public interest when it affects a large number of people. (Wilbanks v. Wolk, supra, 121 Cal.App.4th at pp. 898-900.) Unlike the cases Butler-Lopez relies on, her statements do not involve claims of a widespread pattern of criminal activity and were not made on a website providing reviews of similar professionals. (See Briganti v. Chow, supra, 42 Cal.App.5th at pp. 508-509 [Facebook post alleging widespread pattern of identity theft affecting thousands of people a matter of public interest]; Chaker v. Mateo (2012) 209 Cal.App.4th 1138, 1146-1147 [statements posted on consumer review website and social networking site matter of public interest].) The record does not support the argument that Sayarad's wrongdoing involved a widespread pattern of criminal activity or that the statements were posted as part of a consumer review. Without additional information on the context of the statements, we cannot conclude they affected a large number of people beyond those implicated in the complaint.
It is Butler-Lopez's burden as the moving party to show that the statements arise from, or further, protected activity. (See Bonni, supra, 11 Cal.5th at p. 1009.) As such, she has failed to establish that the statements were made in connection with an issue of public interest. (See Rand Resources, LLC v. City of Carson, supra, 6 Cal.5th at p. 626 [failure to introduce evidence to support finding of public interest a "material deficiency" under first prong].) We therefore find Butler-Lopez did not meet her burden to show the statements are protected activity under section 425.16, subdivision (e)(3) and (4).
2. Statement Made Before Official Proceeding Authorized by Law
We also find that Butler-Lopez's communications with law enforcement are not subject to a special motion to strike because they merely provide context and do not form the basis for liability under the complaint. (See Bonni, supra, 11 Cal.5th at p. 1009.) Moreover, Butler-Lopez fails to show that her statements were made in anticipation of official proceedings. The statements therefore are not protected activity under section 425.16, subdivision (e)(1).
"[A]ny written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law" constitutes protected activity under section 425.16, subdivision (e)(1). Making a report of suspected unlawful activity to law enforcement is protected activity under the statute because law enforcement is an official proceeding authorized by law. (Chabak v. Monroy (2007) 154 Cal.App.4th 1502, 1512; Comstock v. Aber (2012) 212 Cal.App.4th 931, 941.) Additionally, actions directly related to reporting suspected unlawful activity to law enforcement may also be protected activity depending on the situation. (Chabak, at p. 1512.)
The complaint includes an allegation that Butler-Lopez called the police on Sayarad and threatened to, or did, report her to child protective services "[b]ased on one or more" of the false statements. As Butler-Lopez acknowledges in her reply brief, this allegation refers to and incorporates all the false statements she published. Thus, Butler-Lopez's false statements collectively form the basis for liability for each cause of action, not the subsequent reporting of "one or more" of those false statements to the police or child protective services. (See Bonni, supra, 11 Cal.5th at p. 1009.) Additionally, under the defamation cause of action, Sayarad reasserts the false statements originally attributed to Butler-Lopez as the factual basis for the claim and does not mention communications with law enforcement agencies. Therefore, the communications with law enforcement, even if found to be protected activity, are merely incidental to the claims in the complaint and cannot be stricken under section 425.16. (Bonni, at p. 1012.)
Next, we conclude Butler-Lopez has not met her burden to show that the allegedly false statements were made in preparation for or in anticipation of official proceedings. (See Bonni, supra, 11 Cal.5th at p. 1009.) The statements concern potentially criminal matters, including stalking, identity theft, child abuse, theft, and conspiracy to commit murder. But Butler-Lopez failed to identify and analyze how these statements are directly related to her preparation to communicate with law enforcement. (See Chabak v. Monroy, supra, 154 Cal.App.4th at p. 1512.) We disagree with the trial court that the "vagueness of the allegations in the Complaint supports a reading that the alleged statements . . . arose out of" Butler-Lopez's protected communications with law enforcement. While we agree that the complaint is vague, it is ultimately the burden of the moving party to establish that the conduct is protected. (Rand Resources, LLC v. City of Carson, supra, 6 Cal.5th at p. 626.) Therefore, we find the statements in the complaint are not protected activity under section 425.16, subdivision (e)(1).
In sum, we conclude Butler-Lopez did not meet her burden to establish the alleged statements were protected activity under the first prong of section 425.16. Accordingly, we need not consider the second prong. (See Park v. Board of Trustees of California State University, supra, 2 Cal.5th at p. 1073.)
C. Motion for Sanctions
Sayarad has also appealed the trial court's order denying her motion for sanctions brought pursuant to section 128.5. The order, however, is not appealable. (Wells Properties v. Popkin (1992) 9 Cal.App.4th 1053, 1055 [denial of motion for sanctions is not a judgment and therefore not appealable].) Nor does the order fall within the collateral order doctrine. "To qualify as appealable under the collateral order doctrine, the interlocutory order must (1) be a final determination (2) of a collateral matter (3) and direct the payment of money or performance of an act." (Apex LLC v. Korusfood.com (2013) 222 Cal.App.4th 1010, 1016.) Here, the trial court's order denying the sanctions motion does not fall within the scope of the collateral order doctrine because it did not direct the payment of money or performance of an act. (Longobardo v. Avco Corp. (2023) 93 Cal.App.5th 429, 433-434; Sanchez v. Westlake Services, LLC (2022) 73 Cal.App.5th 1100, 1107-1108.)
III. DISPOSITION
The orders granting the anti-SLAPP motion and awarding attorney fees are reversed. The matter is remanded to the superior court with directions to enter orders denying the motions. Sayarad's appeal from the order denying her motion for sanctions under section 128.5 is dismissed. Each party is ordered to bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
WE CONCUR: HUMES, P. J., LANGHORNE WILSON, J.