Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCS 028734
Retired judge of the Superior Court of Marin County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
This appeal has been taken from an order of the trial court that granted defendants’ anti-SLAPP motion (Code Civ. Proc., § 425.16). We conclude that the motion was properly granted and affirm the judgment.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Plaintiff and defendants are residents of American Canyon and members of the Spurs Trail Homeowner’s Association (the Association). The membership of the Association consists of 16 owners of property in a rural area of Solano County. The record does not disclose how many more people occupy the community. When the events that are at issue in the case before us occurred, defendant Janet Dostal was president of the Association.
On October 21, 2006, Dave Boykin, a resident of Spurs Trail, observed two dogs attack and inflict injuries on his pet goat before they were confronted by him and fled. After the attack he followed the dogs to plaintiff’s residence. Boykin told other residents of the area, including Dostal, that he thought the dogs responsible for the attack belonged to plaintiff.
At a regularly scheduled meeting of the Association on November 8, 2006, one of the topics discussed and recorded in the minutes was “the dog attack.” The next day, the Association published and disseminated to its members the minutes of the meeting in the form of a newsletter which stated: “Lot 4 had brutal attack on pet goat from lot 12’s [plaintiff’s] loose and roaming dogs. These dogs are still being seen on other Homeowner’s properties & Homeowner’s are advised to use extreme caution at all times.”
Plaintiff filed the present action for defamation on November 16, 2006. Defendants subsequently filed an anti-SLAPP (strategic lawsuits against public participation) motion to strike plaintiff’s complaint (§ 425.16, subd. (b)). After a hearing the trial court granted the motion. This appeal followed.
DISCUSSION
I. The Notice of the Anti-SLAPP Motion.
Plaintiff presents several challenges to the trial court’s ruling on the anti-SLAPP motion, the first of which is that he failed to receive proper notice of the motion. He claims that the document served on him failed to contain “a notice of the motion [or] the motion itself.” Defendants do not dispute that the notice of the motion to strike was defective, but argue that plaintiff “waived the procedural defects” by appearing at the hearing on the motion and opposing it on the merits.
The record indicates that plaintiff was served with the “Anti-SLAPP Motion” pursuant to section 425.16, which specified a hearing date of January 23, 2007. He filed opposition to the motion, which included argument that the complaint was not subject to the anti-SLAPP statute. He also filed a supporting declaration from a fellow member of the Association, Linda Layton, directed at the issue of prevailing on the merits of the defamation action. Plaintiff’s counsel then appeared at the hearing – which was continued twice and did not occur until May 31, 2007 – and pointed out to the court that in the proof of service “there was no notice of motion, no notice, no motion,” only a “points and authorities” and a “declaration from Janet Dostal.” Counsel asserted that “procedurally the motion is void,” although he acknowledged that a claim of defective service was not raised in the written opposition. Plaintiff’s counsel then proceeded to argue the merits of the motion.
We find that plaintiff waived any claim of inadequate or defective notice. “ ‘It is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of the motion. [Citations.] This rule applies even when no notice was given at all. [Citations.] Accordingly, a party who appears and contests a motion in the court below cannot object on appeal or by seeking extraordinary relief in the appellate court that he had no notice of the motion or that the notice was insufficient or defective.’ ” (Eliceche v. Federal Land Bank Assn. (2002) 103 Cal.App.4th 1349, 1375, quoting from Tate v. Superior Court (1975) 45 Cal.App.3d925, 930; see also Urshan v. Musicians’ Credit Union (2004) 120 Cal.App.4th 758, 768; Alliance Bank v. Murray (1984) 161 Cal.App.3d1, 7–8.) “[O]ne who has been notified to attend a certain proceeding and does do so, cannot be heard to complain of alleged insufficiency of the notice; it has in such instance served its purpose. This rule applies to one who appears in a lawsuit after defective service of process upon him [citation], to one who responds to a notice of motion without adequate notice [citation].” (De Luca v. Board of Supervisors (1955) 134 Cal.App.2d 606, 609; see also Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.)
Plaintiff did not make a special appearance at the hearing on the motion to contest the validity of the notice. Nor did he seek a continuance of the hearing – which had already been continued for four months to prepare opposition. Instead, he prepared and filed written opposition to the anti-SLAPP motion, which included a supporting declaration, then appeared at the scheduled hearing and presented further argument on the merits of the motion. He is therefore foreclosed from claiming that he received inadequate service or was denied a reasonable opportunity to oppose the motion. (Eliceche v. Federal Land Bank Assn., supra, 103 Cal.App.4th 1349, 1375; Carlton v. Quint, supra, 77 Cal.App.4th 690, 697–698.)
Plaintiff claims that the cases finding a waiver of defective notice are “inapposite here” because he did not fail to “object at the hearing,” but rather raised the issue “at oral argument.” Although we agree that plaintiff did not forfeit his claim in the trial court by failing to object, he has confused forfeiture with waiver. (See City of Hollister v. Monterey Ins. Co. (2008) 165 Cal.App.4th 455, 487.) “[F]orfeiture results from the failure to invoke a right, while waiver denotes an express relinquishment of a known right; the two are not the same.” (People v. Romero (2008) 44 Cal.4th 386, 411.) Where, as here, a party appears and contests a motion in the court below, a waiver of any defects or irregularities in the notice of the motion occurs. (Eliceche v. Federal Land Bank Assn., supra, 103 Cal.App.4th 1349, 1374–1375; Pacific Std. Life Ins. Co. v. Tower Industries, Inc. (1992) 9 Cal.App.4th 1881, 1888.) And, “even when the opposing party does expressly object to the inadequate notice in its opposition papers, it may not be sufficient to preserve the issue for appeal. Instead, if the party appears at the appropriate hearing and opposes the motion on the merits – but without making any request for a continuance or demonstrating prejudice from the defective notice, the issue is waived.” (Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1288–1289, italics omitted, citing Carlton v. Quint, supra, 77 Cal.App.4th 690, 697.)
In addition, the record demonstrates to us that no prejudice to plaintiff resulted from defective notice of the motion. “In order to obtain a reversal based upon such a procedural flaw, the appellant must demonstrate not only that the notice was defective, but that he or she was prejudiced. [Citations.] As explained in Lever v. Garoogian (1974) 41 Cal.App.3d37, 40 [115 Cal. Rptr. 856], ‘Procedural defects which do not affect the substantial rights of the parties do not constitute reversible error. (Code Civ. Proc., § 475.)’ ” (Reedy v. Bussell, supra, 148 Cal.App.4th 1272, 1289, italics omitted.) The record before us negates rather than proves prejudice to plaintiff. The hearing on the anti-SLAPP motion was continued for four months, and in the interim plaintiff filed written opposition, complete with a supporting declaration, that thoroughly argued the merits of the motion. Plaintiff’s counsel appeared at the hearing and presented additional argument without any specific complaint that the defective notice prevented him from more effectively contesting the motion. Any defect in the notice was harmless to plaintiff and does not require reversal of the judgment. (Id. at pp. 1289–1290.)
Counsel only vaguely asserted that if the motion had been received “in a better procedural form” plaintiff “would have done perhaps more to address the prima facie showing” element of the anti-SLAPP statute, but also noted that the declaration of Linda Layton addressed that issue.
II. The Statement in the Association Newsletter as a Protected Activity.
Plaintiff complains that the statements in the Association newsletter do not qualify as protected activity under section 425.16, subdivision (e). Specifically, he claims that the “small neighborhood” newsletter of a “private association” is not a “public forum,” and the commentary in the newsletter does concern an issue of “public interest,” as required by the statute.
“Determination of a special motion to strike involves a two-part inquiry.” (Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1477.) “The court first decides whether the defendant has made a threshold showing that the challenged cause of action is one ‘arising from’ protected activity. [Citation.] The moving defendant must 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....’ [Citations.]” (Hailstone v. Martinez (2008) 169 Cal.App.4th 728, 735.) “Such speech includes: ‘(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, 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; (4) or 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.’ [Citation.]” (Id. at p. 736.)
“Second, if the court finds that the defendant has met its initial burden, it then determines whether the plaintiff has demonstrated a probability of prevailing on its claim. [Citation.] To satisfy this prong, ‘the plaintiff “must demonstrate 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.” [Citations.] In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant [citation]; though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim. [Citation.]’ [Citation.]” (U.S. Western Falun Dafa Assn. v. Chinese Chamber of Commerce (2008) 163 Cal.App.4th 590, 598–599, italics omitted.)
“The trial court reviews the pleadings and the admissible evidence contained in the declarations to determine if the parties have met their burdens of proof. [Citations.] The motion may be granted only if the cause of action arises from protected activity and the plaintiff cannot establish a probability of prevailing on the merits.” (Chabak v. Monroy (2007) 154 Cal.App.4th 1502, 1509.) “We review the trial court’s ruling on a section 425.16 motion de novo. [Citation.] ‘We exercise our independent judgment to determine not only whether the anti-SLAPP statute applies, but whether the complainant has established a reasonable probability of prevailing on the merits. [Citation.]’ [Citation.] ‘However, we neither “weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.” [Citation.]’ [Citation.]” (Id. at p. 1510.)
The basis for finding a protected activity in the present case is a 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, subd. (e)(3), italics added.) The dual requirements of a “public forum” and “an issue of public interest” are interrelated, but both must be established. (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 898.) We must determine if the Association newsletter is a public forum and the statement that plaintiff’s “loose and roaming dogs” attacked a pet goat, coupled with the warning to Association members to “use extreme caution,” was an issue of public interest within that forum.
A. The Association Newsletter as a Public Forum.
We disagree with plaintiff’s assertion that the publication of a homeowner’s association must meet a “size requirement” or “quantitative minimum” to qualify as a public forum. The element of a public forum has never been defined by reference to the extent of dissemination of a statement. “To be protected by section 425.16, subdivision (e)(3), the statements on which a suit is based must have been made ‘in a place open to the public or a public forum.’ ” (Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1036.) “A public forum is a place open to the use of the general public ‘ “for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” ’ [Citations.]” (Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1130 (Weinberg).) “ ‘Cases construing the term “public forum” as used in section 425.16 have noted that the term “is traditionally defined as a place that is open to the public where information is freely exchanged.” [Citation.] “Under its plain meaning, a public forum is not limited to a physical setting, but also includes other forms of public communication.” ’ [Citation.]” (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1247; see also Kronemyer v. Internet Movie Database, Inc. (2007) 150 Cal.App.4th 941, 950.)
The classification of newspapers, magazines, and newsletters as public forums has been the subject of disagreement and debate in the case law. (Nygard, Inc. v. Uusi-Kerttula, supra, 159 Cal.App.4th 1027, 1037.) The focal point of the inquiry for purposes of section 425.16, subdivision (e)(3), however, is upon the nature rather than the size of the forum. Two cases serve to illustrate the distinction.
In Weinberg, supra, 110 Cal.App.4th 1122, the plaintiff and the defendant were aficionados of token collecting and members of the 700-member National Token Collectors’ Association that sponsored token shows. (Id. at p. 1127.) The plaintiff sued for defamation, alleging the defendant published statements in the association’s monthly private, selective-access newsletter that one of his tokens disappeared after it was shown to another collector. The defendant also identified the plaintiff as the thief in letters sent to more than 20 token collectors, accompanied by the suggestion he should be barred from future token shows. (Id. at pp. 1128–1129.) The court concluded that the trade newsletter was not a public forum: “A public forum is a place open to the use of the general public ‘ “for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” ’ [Citations.] Means of communication where access is selective, such as most newspapers, newsletters, and other media outlets, are not public forums. [Citation.] Some of the statements of which plaintiff complains were printed in [the trade newsletter]. There is nothing in the record to establish [the newsletter] is sufficiently open to general public access to be considered a public forum.” (Id. at pp. 1130–1131.) The court added: “While it might be shown in a particular case that a newsletter is sufficiently open to general public access as to come within section 425.16, a private selective-access newsletter cannot be found to be a public forum without such a showing.” (Id. at p. 1131, fn. 4.)
The court in Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, (Damon ) reached a different conclusion when presented with statements published by the Village Voice, the newsletter of a private homeowner’s association. In deciding that the private newsletter was a public forum, the court assumed for purposes of argument that the newsletter did not permit views contrary to those of the small group of homeowners it served. The court nevertheless held: “The Village Voice was a public forum in the sense that it was a vehicle for communicating a message about public matters to a large and interested community. All interested parties had full opportunity to read the articles in the newsletter. Although the Village Voice newsletter may not have offered a ‘balanced’ view, the Association’s other newsletter... was the place where Association members with differing viewpoints could express their opposing views. It is in this marketplace of ideas that the Village Voice served a very public communicative purpose promoting open discussion – a purpose analogous to a public forum. Given the mandate that we broadly construe the anti-SLAPP statute, a single publication does not lose its ‘public forum’ character merely because it does not provide a balanced point of view. [¶] This construction comports with the fundamental purpose underlying the anti-SLAPP statute, which seeks to protect against ‘lawsuits brought primarily to chill the valid exercise of constitutional rights’ and ‘abuse of the judicial process....’ [Citation.] This purpose would not be served if we were to construe the statute to make section 425.16, subdivision (e)(3) inapplicable to all newspapers, magazines, and other public media merely because the publication is arguably ‘one-sided.’ This is particularly true because section 425.16, subdivision (e)(3) requires not only that the statement be made in a public forum, but also that it concern an issue of public interest. Further, because section 425.16, subdivision (e)(4) includes conduct in furtherance of free speech rights, regardless whether that conduct occurs in a place where ideas are freely exchanged, it would be anomalous to interpret section 425.16, subdivision (e)(3) as imposing that requirement merely because the challenged speech is an oral or written statement.” (Id. at pp. 476–477, italics omitted.)
These somewhat differing views may be reconciled by recognizing that the primary determinative factor is “public access” and availability to the forum for purposes of discussion and debate. (Nygard, Inc. v. Uusi-Kerttula, supra, 159 Cal.App.4th 1027, 1036; Wilbanks v. Wolk, supra, 121 Cal.App.4th 883, 896–897.) It is “public access, not the right to public comment” that “is the hallmark of a public forum....” (Nygard, Inc. v. Uusi-Kerttula, supra, at p. 1039, citing Barrett v. Rosenthal (2006) 40 Cal.4th 33, 41, fn. 4.) Even if a publication ultimately does not express balanced views, the forum is nevertheless a public one if the opportunity is offered for interested members of the organization to present differing perspectives. (Wilbanks v. Wolk, supra, at p. 897; Damon, supra, 85 Cal.App.4th 468, 476–477.) In contrast, if publication of statements is derived from means of communication where access is selective or restricted, the forum is not public. (Weinberg, supra, 110 Cal.App.4th 1122, 1130.)
Plaintiff supports his argument for a size-based restriction on public forums by directing our attention to language in Damon that the homeowner’s association newsletter in that case, the Village Voice, although restrictive in presentation of views, was described as a “vehicle for communicating a message about public matters to a large and interested community.” (Damon, supra, 85 Cal.App.4th 468, 476, italics added; see also Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146, 1161.) The court did not emphasize scope of distribution as a seminal component of a public forum, however. Instead, the court stressed that the homeowner’s association was the place where “members with differing viewpoints could express their opposing views,” and the newsletter not only served a very public communicative purpose of promoting open discussion as a “marketplace of ideas,” but also provided all interested parties with “full opportunity to read the articles in the newsletter.” (Damon, supra, at p. 476.)
At oral argument plaintiff read a definition from the Damon case that was quoted by Division Two of this court in the Du Charme case: “ ‘The definition of “public interest” within the meaning of the anti-SLAPP statute has been broadly construed to include not only governmental matters, but also private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a governmental entity. [Citations.]’ (Damon, supra, 85 Cal.App.4th at p. 479, citing Macias [v. Hartwell (1997)] 55 Cal.App.4th [669,] 674....)” (Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107, 115.) However, plaintiff chose not to address the emphasized second definition which is a close characterization of the situation at hand.
While we recognize that the size of the organization is a pertinent factor in the assessment, it is neither a determinative nor even paramount consideration. Imposition of a quantitative minimum or other form of precise size qualification would not only tend to infuse an element of arbitrariness into the evaluation of a public forum, but would also contravene the essential and often repeated mandate of section 425.16 to construe the scope of the statute broadly to protect against lawsuits that abuse the judicial process or are brought primarily to chill the valid exercise of constitutional rights. (Nygard, Inc. v. Uusi-Kerttula, supra, 159 Cal.App.4th 1027, 1038; Damon, supra, 85 Cal.App.4th 468, 476–477.) Freedom of expression may be quashed even within a group that is not large.
The Association newsletter was circulated to a small collection of interested people, but within that group it was specifically designed to foster awareness and promote discussion of issues crucial to the community. On a local community level, the Association functioned as a self-governing body that acted to promote assembly of its members and provide a medium for free exchange of information and dialogue on common issues. It was not a trade organization that offered selective remarks on private matters. (Cf. Weinberg, supra, 110 Cal.App.4th 1122, 1131.) The governance of a residential community may be analogized to public governance; “ ‘ “[f]or many Californians, the homeowners association functions as a second municipal government....” [Citation.]’ [Citation.]” (Thomas v. Quintero (2005) 126 Cal.App.4th 635, 660.) Nothing indicates to us that access to the meetings of the Association were selective, or debate of the topic was in any way restricted. Defendants also offered evidence that the minutes of the Association published in the newsletter did nothing more than include topics of interest discussed at the regularly scheduled meeting on November 8, 2006, one of which was the recent dog attack. We conclude that the Association newsletter falls within the definition of a “public forum” within the meaning of section 425.16, subdivision (e)(3). (Nygard, Inc. v. Uusi-Kerttula, supra, 159 Cal.App.4th 1027, 1039.)
B. The Statements as Concerning an Issue of Public Interest.
We turn to the second prong of section 425.16, subdivision (e)(3), the requirement that the statement concern an issue of public interest. Not every statement made in a public forum falls under section 425.16, subdivision (e)(3). (Wilbanks v. Wolk, supra, 121 Cal.App.4th 883, 898.) A further limitation is “the requirement that the statement or conduct be connected with an issue of public interest – a limitation that, among other things, means that in many cases the statement or conduct will be a part of a public debate and the public therefore will be exposed to varying viewpoints on the issue.” (Ibid.) Subdivision (e)(4) of section 425.16 also grants protection to “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,” which has been interpreted to apply to “private communications concerning issues of public interest.” (Terry v. Davis Community Church (2005) 131 Cal.App.4th 1534, 1546; Wilbanks v. Wolk, supra, at p. 897, fn. 4.)
“ ‘Public interest’ within the meaning of the anti-SLAPP statute has been broadly defined to include, in addition to government matters, ‘ “private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a governmental entity.” ’ [Citation.]” (Ruiz v. Harbor View Community Assn. (2005) 134 Cal.App.4th 1456, 1468.) “[T]he statute requires the issue to include attributes that make it one of public, rather than merely private, interest. [Citation.] A few guiding principles can be gleaned from decisional authorities. For example, ‘public interest’ is not mere curiosity. Further, the matter should be something of concern to a substantial number of people. Accordingly, a matter of concern to the speaker and a relatively small, specific audience is not a matter of public interest. Additionally, there should be a degree of closeness between the challenged statements and the asserted public interest. The assertion of a broad and amorphous public interest is not sufficient. Moreover, the focus of the speaker’s conduct should be the public interest, not a private controversy. Finally, a defendant charged with defamation cannot, through his or her own conduct, create a defense by making the claimant a public figure. Otherwise private information is not turned into a matter of public interest simply by its communication to a large number of people.” (Hailstone v. Martinez, supra, 169 Cal.App.4th 728, 736.)
The comments in the Association newsletter did not reach or have any cognizable interest for a substantial number of people with reference to the community beyond the Spurs Trail area residents. Outside the geographic area represented by the Association, we have no doubt that the subject of the behavior of plaintiff’s dog was of little consequence to the public as a whole. The topic of the dog attack and the continuing danger it disclosed was of great interest, however, to the entirety of the community within the context of the Association and its members. We are persuaded that the public issue element must be determined with reference to the definable portion of the public targeted by the statement, rather than by notoriety to the amorphous, widespread public as a whole. If not, comment upon issues that uniformly and gravely impact a collection of people would fall outside the coverage of the anti-SLAPP law, in contravention of the broad statutory objective. Many issues of vital import to a cognizable group have no significance to the rest of the public. The question whether statements concern “ ‘a matter of public interest cannot be determined on the basis of media coverage, notoriety or potential newsworthiness.... [¶] The existence of a public issue depends rather on whether the statements possessed the sort of relevance to self-government that places them in a specially protected category of First Amendment values described in Connick v. Myers [(1983)] 461 U.S. [138,] 145 75 L.Ed.2d 708, 103 S.Ct. 1684]....’ [Citation.]” (Nygard, Inc. v. Uusi-Kerttula, supra, 159 Cal.App.4th 1027, 1040.) Where, as in the present case, “the issue is of interest only to a limited, but definable portion of the public, such as a private group, organization, or community, ‘the constitutionally protected activity must, at a minimum, occur in the context of an ongoing controversy, dispute or discussion, such that it warrants protection by a statute that embodies the public policy of encouraging participation in matters of public significance.’ [Citation.]” (Hailstone v. Martinez, supra, 169 Cal.App.4th 728, 738, italics omitted.)
The statements in the Association newsletter were not merely informational. The fact that a dog attack had occurred, and the dogs may still be running loose in the neighborhood, was an ongoing public safety issue that legitimately engendered both the need for admonishment of residents and discussion of the appropriate remedial action to be taken by the Association. (Thomas v. Quintero, supra, 126 Cal.App.4th 635, 661.) The dispute was of interest to a definable portion of the public, namely, the members of the Association. (Ruiz v. Harbor View Community Assn., supra, 134 Cal.App.4th 1456, 1468.) Thus, within the sphere of the Association and the public it represented, the matter was of serious concern. Further, the topic and the focus of the statements were not part of a private dispute. The statements in the newsletter had a close connection to both the specific issue and the governing function of the Association. Thus, granting anti-SLAPP protection to the statement “furthers the statute’s policy of encouraging public participation in matters of public interest.” (Ruiz v. Harbor View Community Assn., supra, at p. 1470.) Considering the exceedingly “expansive interpretation of the phrase ‘issue of public interest,’ and in light of the statute’s mandate that we construe the law broadly so as to ‘encourage continued participation in matters of public significance’ (§ 425.16, subd. (a)),” we must conclude that the statements at issue here were protected under section 425.16, subdivision (e)(3). (Thomas v. Quintero, supra, at p. 661.)
II. The Probability of Prevailing on the Merits.
The final step in our analysis is to determine whether plaintiff “met his burden of establishing a probability of prevailing on the defamation complaint.” (Hailstone v. Martinez, supra, 169 Cal.App.4th 728, 738–739; Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 808–809.) “To establish the requisite probability of prevailing, the plaintiff need only have ‘ “ ‘stated and substantiated a legally sufficient claim.’ ” ’ [Citation.] ‘ “Put another way, the plaintiff ‘must demonstrate 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.’ ” ’ [Citation.] The plaintiff need only establish that his or her claim has minimal merit to avoid being stricken as a SLAPP. [Citation.] Nevertheless, a plaintiff cannot simply rely on his or her pleadings, even if verified. Rather, the plaintiff must adduce competent, admissible evidence.” (Hailstone v. Martinez, supra, at p. 735.) Plaintiff, “to meet his burden of showing a probability of prevailing on the libel cause of action, had to ‘make a prima facie showing of facts that would, if proven, support a judgment in [his] favor.’ [Citation.]” (Ruiz v. Harbor View Community Assn., supra, 134 Cal.App.4th 1456, 1470.)
The proper standard of review to evaluate the probability of success under section 425.16 does not “weigh the evidence or make credibility determinations; doing either would violate plaintiff’s right to a jury trial. [Citation.]... [T]he court may only consider the opposing evidence ‘to determine if it defeats the plaintiff’s showing as a matter of law. [Citation.]’ [Citation.]” (Colt v. Freedom Communications, Inc. (2003) 109 Cal.App.4th 1551, 1557.)
Defamation “consists of, among other things, a false and unprivileged publication, which has a tendency to injure a party in its occupation.” (Wilbanks v. Wolk, supra, 121 Cal.App.4th 883, 901; see also Raghavan v. Boeing Co. (2005) 133 Cal.App.4th 1120, 1132; Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645.) “It is an essential element of defamation that the publication be of a false statement of fact rather than opinion.” (Ringler Associates Inc. v. Maryland Casualty Co. (2000) 80 Cal.App.4th 1165, 1181.) “ ‘In all cases of alleged defamation, whether libel or slander, the truth of the offensive statements or communication is a complete defense against civil liability, regardless of bad faith or malicious purpose.’ [Citation.]” (Raghavan, supra, at p. 1132.) “[I]n a defamation action the burden is normally on the defendant to prove the truth of the allegedly defamatory communications.” (Stolz v. KSFM 102 FM (1994) 30 Cal.App.4th 195, 202.)
Defamation also requires an “ ‘unprivileged publication....’ ” (Paterno v. Superior Court (2008) 163 Cal.App.4th 1342, 1349, quoting Civ. Code § 45; see also Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154, 1173.) “Privilege is an affirmative defense to a claim of defamation.” (Beroiz v. Wahl (2000) 84 Cal.App.4th 485, 492.)
Two deficiencies in plaintiff’s proof of defamation are apparent from the record. First, he has failed satisfactorily to show that statements of fact in the newsletter are false. The newsletter attributes the attack on Dave Boykin’s goat to plaintiff’s dogs, and asserts that they “are still being seen on other Homeowner’s properties.” In support of the anti-SLAPP motion defendants adduced Janet Dostal’s declaration that Boykin observed the attack and identified the dogs who attacked the goat as “being owned” by plaintiff. Attached to the declaration was a letter from Boykin dated November 24, 2006, in which he described the attack, his pursuit of the dogs to plaintiff’s property, and his observation that one of plaintiff’s dogs “had blood all over his face.” The letter also states that plaintiff paid the vet bill for treatment of the goat. In response, plaintiff offered a declaration from his neighbor Linda Layton, who stated that after the attack Boykin indicated to her that “he thought” plaintiff’s “dogs had been on his property and damaged the goat.” Layton contacted a vet to treat the goat, then visited plaintiff’s residence, where she found no indication that his dogs were loose or had “any traces of blood” on them.
Layton’s declaration is an attenuated, after-the-fact account that does not negate the truth of the statement which attributed the attack to plaintiff’s dogs. The burden of proof of a sufficient prima facie showing of facts to sustain a favorable judgment “must be made through ‘competent and admissible evidence.’ [Citations.] Thus, declarations that lack foundation or personal knowledge, or that are argumentative, speculative, impermissible opinion, hearsay, or conclusory are to be disregarded.” (Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 26.) The only information in Layton’s declaration derived from her personal knowledge was that well after the incident the dogs were restrained on plaintiff’s property and no longer exhibited external signs of participation in the attack. In contrast, Boykin’s personal observation and description of the incident contains convincing evidence that plaintiff’s dogs were responsible for the attack. The statements that form the basis of a defamation claim must expressly or impliedly assert a fact that is susceptible to being proved false. (Wilbanks v. Wolk, supra, 121 Cal.App.4th 883, 902.) “The ultimate question is whether a reasonable trier of fact could conclude that the published statements imply a provably false factual assertion.” (Ibid.) We find that a reasonable trier of fact would not conclude that the attribution of fault for the attack to plaintiff’s dogs was false.
Plaintiff’s showing of the requisite probability of prevailing on the merits is also defeated by the “so-called common-interest privilege established by Civil Code section 47, subdivision (c)(1).” (Taus v. Loftus (2007) 40 Cal.4th 683, 720.) Section 47 “extends a conditional privilege against defamatory statements made without malice on subjects of mutual interest.” (Hailstone v. Martinez, supra, 169 Cal.App.4th 728, 739–740.) “This privilege applies to any communication, ‘without malice, to a person interested therein, (1) by one who is interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information.’ [Citation.] This privilege protects good faith, well-intended communications serving significant interests.” (Beroiz v. Wahl, supra, 84 Cal.App.4th 485, 493.)
“Application of the privilege, as with any conditional privilege in defamation law, involves a two-step inquiry. The first question is whether the factual predicate for the privilege was present – whether, in traditional terms, the ‘ “occasion” ’ was ‘ “privileged.” ’ [Citation.]” (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 729.) “[O]nce it is established that an allegedly defamatory statement was made upon an occasion that gave rise to a qualified privilege under [Civil Code] section 47(c), a plaintiff may recover damages for defamation only if he or she presents evidence sufficient to establish that the statement was made with malice.” (Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1210.)
Statements in the newsletter on an issue of importance to the Association’s members fall squarely within the common-interest privilege. (See Taus v. Loftus, supra, 40 Cal.4th 683, 721; Lundquist v. Reusser, supra, 7 Cal.4th 1193, 1204; Bierbower v. FHP, Inc. (1999) 70 Cal.App.4th 1, 3; Manguso v. Oceanside Unified School Dist. (1984) 153 Cal.App.3d 574, 580; Katz v. Rosen (1975) 48 Cal.App.3d 1032, 1037.) Turning to the element of malice, “Insofar as the common-interest privilege is concerned, malice is not inferred from the communication itself. [Citation.] ‘ “The malice necessary to defeat a qualified privilege is ‘actual malice’ which is established by a showing that the publication was motivated by hatred or ill will towards the plaintiff or by a showing that the defendant lacked reasonable grounds for belief in the truth of the publication and therefore acted in reckless disregard of the plaintiff’s rights (citations).” [Citations.]’ [Citations.]” (Noel v. River Hills Wilsons, Inc. (2003) 113 Cal.App.4th 1363, 1370, italics omitted; see also Taus v. Loftus, supra, at p. 721; Sanborn v. Chronicle Pub. Co. (1976) 18 Cal.3d 406, 413.) “However, ‘[l]ack of reasonable or probable cause... is not... a simple negligence concept.... [M]alice focuses upon the defendant’s state of mind, not his [or her] conduct. Mere negligence in inquiry cannot constitute lack of reasonable or probable cause.’ [Citations.] ‘While “[t]he concept of negligence is inherent in the issue of probable cause” [citation],... [¶]... mere negligence... in the sense of oversight or unintentional error, is not alone enough to constitute malice. It is only when the negligence amounts to a reckless or wanton disregard for the truth, so as to reasonably imply a wilful disregard for or avoidance of accuracy, that malice is shown.’ [Citations.]” (Noel v. River Hills Wilsons, Inc., supra, 113 Cal.App.4th 1363, 1370–1371.) “ ‘There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.’ [Citation.]” (Jackson v. Paramount Pictures Corp. (1998) 68 Cal.App.4th 10, 33.) The cases “ ‘are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication....’ [Citation.]” (Ibid.)
Plaintiff has failed to adduce any evidence that Dostal, to whom he attributes the publication, doubted or had reason to doubt the apparently credible information she received from Boykin, who personally witnessed the attack. (See Taus v. Loftus, supra, 40 Cal.4th 683, 721–722; Noel v. River Hills Wilsons, Inc., supra, 113 Cal.App.4th 1363, 1372; Manguso v. Oceanside Unified School Dist., supra, 153 Cal.App.3d 574, 583–584.) The suggestion in Layton’s declaration that Dostal, as president of the Association, used her authority “to cause troubles for people she does not like,” one of whom was plaintiff, furnishes only the most speculative proof of dislike or ill-will related to other matters, and falls short of the evidence necessary to prove actual malice. (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 931; Copp v. Paxton (1996) 45 Cal.App.4th 829, 847.) The publication of the two privileged statements based on information Dostal received from a third party source are not shown to be actionable defamation due to the failure of plaintiff to offer proof of malice. We therefore conclude that plaintiff failed to demonstrate a likelihood of prevailing on the merits.
Accordingly, the judgment is affirmed.
We concur: Marchiano, P. J., Margulies, J.