Opinion
G055077 G055081
06-25-2018
NOEL SHENOI, Plaintiff and Respondent, v. CALIFORNIA STATE SOCCER ASSOCIATION-SOUTH, Defendant and Appellant. NOEL SHENOI, Plaintiff and Respondent, v. RICHARD MAYA et al., Defendants and Appellants.
Bremer Whyte Brown & O'Meara, Keith G. Bremer, Jeremy S. Johnson, Benjamin L. Price and Sean D. Willet for Defendants and Appellants. Henry J. Josefsberg 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 30-2016-00891570) OPINION Appeal from orders of the Superior Court of Orange County, Nathan R. Scott, Judge. Affirmed. Bremer Whyte Brown & O'Meara, Keith G. Bremer, Jeremy S. Johnson, Benjamin L. Price and Sean D. Willet for Defendants and Appellants. Henry J. Josefsberg for Plaintiff and Respondent.
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INTRODUCTION
Respondent Noel Shenoi sued appellants West Covina Youth Soccer (WCYS), Richard Maya, and California State Soccer Association - South (Cal-South) over an incident at a soccer game at which Shenoi was a referee. The defendants responded with anti-SLAPP motions, claiming, eventually, that Shenoi's complaint arose from an act in furtherance of their constitutional rights in connection with a public issue or an issue of public interest. The trial court denied both motions, one by Maya and WCYS, the other by Cal-South. We have consolidated the appeals from the two orders denying the anti-SLAPP motions.
We affirm both orders. The issue presented on appeal is whether Shenoi's complaint arose from conduct in furtherance of appellants' constitutional rights in connection with a public issue or an issue of public interest. We have concluded that no such issue underlies Shenoi's complaint.
FACTS
As alleged in the complaint, Shenoi is certified as a youth soccer referee for Cal-South. He refereed a WCYS soccer game on December 12, 2015. Maya was the coach of one of the teams. According to the complaint, Maya told two assistant referees, the mother of one of the players, and law enforcement that Shenoi was drunk.
After the game, deputy sheriffs allegedly arrived on the field and gave Shenoi a sobriety test. That was the end of the incident.
Shenoi e-mailed WCYS about the incident a few days later. WCYS forwarded the information to Cal-South, and an insurance claims manager for Cal-South asked Shenoi for a statement. Cal-South apparently did nothing about the incident.
Shenoi sued Maya, Cal-South, and WCYS for defamation, breach of contract (Cal-South only), fraud (Cal-South only), and infliction of emotional distress. Cal-South filed an anti-SLAPP motion, and Maya and WCYS later filed a separate anti-SLAPP motion. The defendants also filed demurrers, which were heard on the same days as the motions.
The trial court denied Cal-South's motion on May 16 and the Maya/WCYS motion on June 5, 2017. In both cases, the court held the defendants had not met their burden of showing protected activity - specifically that Shenoi's claims arose from conduct in connection with a public issue or an issue of public interest. The trial court overruled Cal-South's demurrer to the first cause of action for defamation and sustained its demurrers to the other causes of action with leave to amend. Likewise, the court overruled Maya and WCSY's demurrer to the first causes of action and sustained their demurrers to the remaining causes of action with leave to amend. Shenoi apparently did not amend against any of the defendants.
The defendants appealed from both orders denying their anti-SLAPP motions, and the two appeals have been consolidated for briefing, argument, and disposition.
DISCUSSION
"A SLAPP suit is 'a meritless suit filed primarily to chill the defendant's exercise of First Amendment rights.' [Citations.] In response, the Legislature adopted the anti-SLAPP statute, which states: 'A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.' [Citation.]" (Finton Construction, Inc. v. Bidna & Keys, APLC (2015) 238 Cal.App.4th 200, 208 (Finton ).)
"The purpose of the statute is to dismiss meritless lawsuits designed to chill the defendant's free speech rights at the earliest stage of the case. [Citation.] . . . [¶] Trial courts evaluate motions brought under the statute using a two-step process. '"First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant's burden is to demonstrate that the act or acts of which the plaintiff complains were taken 'in furtherance of the [defendant]'s right of petition or free speech under the United States or California Constitution in connection with a public issue,' as defined in the statute. (§ 425.16, subd. (b)(1).)"' [Citation.] If that requirement is met, the court then proceeds to the second step to determine whether the plaintiff has demonstrated a probability of prevailing on the claim. [Citation.] '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.' [Citation.]" (Finton, supra, 238 Cal.App.4th at p. 209 (first italics added).)
I. The Maya/WCYS Motion
Maya and WCYS initially based their anti-SLAPP motion on Code of Civil Procedure section 425.16, subdivision (e)(1), which applies to a statement "made before a legislative, executive, or judicial body, or any other official proceeding authorized by law." They correctly observed that police reports are protected activity under this subdivision. (See Comstock v. Aber (2012) 212 Cal.App.4th 931,941-942.) They invoked the "public issue or issue of public interest" portion of the anti-SLAPP statute, section 425.16, subdivision (e)(4), only in their reply.
All further statutory references are to the Code of Civil Procedure.
Maya and WCYS confusingly refer to this subdivision as "section 425.16(e)(2)," the subdivision referring to issues under consideration or review by an official body.
The trial court analyzed the motion under both the "official proceedings" and the "public issue" aspects of the anti-SLAPP statute. With respect to "official proceedings," the trial court pointed out that Maya and WCYS failed to present evidence that they made the police report that underlies the complaint. The evidence presented in connection with the motion established that someone else - most likely a player's parent - summoned the police.
With respect to "public issue," the trial court ruled that "[k]ids' soccer games do not necessarily draw public interest. Defendants offer no evidence of any ongoing controversy meriting public participation or any broad significance to any defined community, beyond anyone at the game."
In their opening brief, Maya and WCYS abandoned the "official proceedings" aspect of the anti-SLAPP statute in favor of "public issue or an issue of public interest" position. They contend that Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450 (Hecimovich) resembles this case, and the outcome should be the same.
In their reply brief, appellants once again raised the police report as supporting their anti-SLAPP motion. We generally do not consider arguments raised for the first time in a reply brief. (Raceway Ford Cases (2016) 2 Cal.5th 161, 178.) Issues not raised in an opening brief are deemed abandoned. (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.)
Hecimovich concerned a lawsuit filed by a volunteer coach of a fourth-grade basketball team. (Hecimovich, supra, 203 Cal.App.4th at p. 454.) According to the complaint, a player on the team began a series of dangerous misbehaviors, including throwing balls at the lights, clock, and fire alarm to break them, throwing or kicking balls toward other players' basketballs while they were shooting or dribbling, and disappearing during practice. Efforts to address the problem with the player's parents having evoked hostility toward him, Hecimovich took the problem to the basketball coordinator, who not only refused to back him up but also "threatened various punishments, including removing him as a coach." (Id. at p. 456.) The following year, after Parent-Teacher Organization (PTO) officials got involved, Hecimovich was permanently barred from participating in the league. (Ibid.)
Hecimovich sued the PTO, its president and its basketball commissioners for, among other causes of action, libel and slander. (Hecimovich, supra, 203 Cal.App.4th at p. 456.) The defendants filed an anti-SLAPP motion on "public issue or an issue of public interest" grounds, which motion was denied. (Id. at pp. 457, 460.) The Court of Appeal reversed. (Id. at p. 477.)
The reviewing court found two issues of public interest. The first was "the well-being of young children," encompassing communications involving Hecimovich's unfitness to coach, his discrimination against the players, and his improper disciplinary tactics. (Hecimovich, supra, 203 Cal.App.4th at p. 466.) The second issue was "safety in youth sports, not to mention problem coaches/problem parents in youth sports[.]" (Id. at p. 468.) Appellants have homed in on the "players' safety" issue in Hecimovich as providing the issue of public interest for the anti-SLAPP analysis.
Courts have struggled to define "public issue" and "issue of public interest" as those terms are used in section 425.16, subdivision (e)(4). After surveying the applicable cases, the court in Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913 (Rivero) concluded that a public issue (a) "concerned a person or entity in the public eye," (b) involved "conduct that could directly affect a large number of people beyond the direct participants," or (c) concerned "a topic of widespread, public interest[.]" (Id. at p. 924.) The court in Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, added a few more observations. An issue of public interest "should be something of concern to a substantial number of people," not to a "relatively small, specific audience[.]" There must be "some degree of closeness between the challenged statements and the asserted public interest," and "the assertion of a broad and amorphous public interest is not sufficient[.]" (Id. at p. 1132.)
In determining whether section 425.16, subdivision (e)(4), applies to allegations of a complaint, one of the trial court's basic tasks is to draw the boundaries of the issue. What is this complaint really about? If the boundaries are drawn too expansively, any issue will become a "public issue" or an "issue of public interest." As the court observed in Rivero, any workplace dispute would become a public issue if the dispute is characterized as being about workplace fairness or employment in general. (Rivero, supra, 105 Cal.App.4th at p. 924.) A garden-variety contract case could be about business ethics or the entrepreneurial system. (See World Financial Group, Inc. v. HBW Ins. & Financial Services, Inc. (2009) 172 Cal.App.4th 1561, 1569 ["[D]efendants erroneously identify generalities that might be derived from their speech rather than the specific nature of what they actually said and did."].)
In this case, Maya and WCYS have identified their issue of public interest as "safety of youth in sports," as it was in Hecimovich. But the issue in that case was the players' actual physical safety and protecting them against improper disciplinary techniques and unacceptable coaching conduct. (Hecimovich, supra, 203 Cal.App.4th at pp. 465-466.) In this case, however, Shenoi was not a coach; he was a soccer referee. His contact with the players would be minimal at best. Moreover, while it would certainly be unpleasant and unedifying for a soccer referee to be drunk at a game, it is difficult to see how this situation would pose a danger to the players' safety. Unlike Hecimovich, who was in close contact with his team on a regular basis, Shenoi would have little or no opportunity - drunk or sober - to interact with the soccer players whose games he refereed, and we have no indication this was anything but a single occurrence if it happened at all.
The dispute in Hecimovich ultimately involved not only the parents of the child who was misbehaving, but also ultimately the parents of other team members, the PTO, and league officials. It resulted in Hecimovich's being banned from coaching. (Hecimovich, supra, 203 Cal.App.4th at pp. 465-466.) This episode involved a few people at one soccer game and petered out after someone at WCYS apologized to Shenoi. The trial court ruled correctly that Shenoi's complaint did not arise from a public issue or issue of public interest.
II. The Cal-South Motion
According to Shenoi's complaint, Cal-South did nothing after Shenoi complained about the December 12, 2015, incident. Shenoi's evidence in opposition to Cal-South's anti-SLAPP motion added only that a Cal-South board member attended the game and that the Cal-South signature director was at the playing field during the game.
This failure to act was the basis of the breach of contract and fraud claims against Cal-South, claims as to which the trial court sustained demurrers.
As the trial court pointed out, Shenoi's defamation claim - the only one left standing - did not arise from protected activity. In fact, we are at a loss to find evidence of any activity on Cal-South's part that would bring it within the ambit of the anti-SLAPP statute. According to the complaint, Cal-South did nothing in response to the information forwarded to it by WCYS. According to Shenoi's evidence, representatives of Cal-South were at the game, again doing nothing. When Shenoi tried to "resolve" the "situation," with the expressed intention of preventing a "re-occurrence," Cal-South again did nothing. The only response he received from Cal-South was a request for a statement from an insurance claims manager.
In order for the anti-SLAPP statute to apply, there must be an "act . . . in furtherance of the person's right of petition or free speech under the United States Constitution or the California State Constitution in connection with a public issue[.]" (§ 425.16, subd. (b)(1), italics added.) Cal-South has presented no authority for the idea that doing nothing invokes the protection of the anti-SLAPP statute.
Because we have determined that appellants failed to establish that Shenoi's surviving cause of action arose from protected activity, we do not reach the second prong of the anti-SLAPP analysis, the probability of prevailing on the merits. (See City of Cotati v. Cashman ( 2002) 29 Cal.4th 69, 80-81.)
DISPOSITION
The orders denying appellants' anti-SLAPP motions are affirmed. Respondent is to recover his costs on appeal.
BEDSWORTH, J. WE CONCUR: O'LEARY, P. J. GOETHALS, J.