Defendants Alexei Andreev and Vita Gorbunova’s (“Gorbunova”) (collectively, “Defendants”) request for judicial notice of the complaint is GRANTED. (See Evid. Code, § 452, subd. (d); see also People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [only relevant matters are subject to judicial notice].)
Defendants’ anti-SLAPP motion to strike the defamation cause of action in the complaint is DENIED.
Code of Civil Procedure section 425.16, subdivision (b) requires the moving party to first make a threshold showing that the challenged cause of action arises from acts that were taken in furtherance of the defendant’s right of petition or free speech under the U.S. Constitution or the California constitution in connection with a public issue. (See Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 67.) “[A]ny written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest,” 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.” (CCP, § 425.16, subd. (e)(3)-(4).)
Defendants argue that their speech is protected speech made in a public forum in connection with a public interest. A website such as Yelp is considered a public forum or a place “open to the public” for purposes of the anti-SLAPP statute. (See Barrett v. Rosenthal (2006) 40 Cal 4th 33, 41, fn. 4 (collecting cases); Kronemyer v. Internet Movie Data Base, Inc. (2007) 150 Cal App 4th 941, 950; Wong v. Tai Jing (2010) 182 Cal App 4th 1354, 1367.) However, not every posting on such a website involves a public issue. (See D.C. v. R.R. (2010) 182 Cal App 4th 1190, 1226.) The anti-SLAPP “statute requires that there be some attributes of the issue which make it one of public, rather than merely private, interest.” (Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1132 [“Weinberg”].) As articulated by the court in Weinberg:
A few guiding principles may be derived from decisional authorities. First, “public interest” does not equate with mere curiosity. Second, a matter of public interest should be something of concern to a substantial number of people. Thus, a matter of concern to the speaker and a relatively small, specific audience is not a matter of public interest. Third, there should be some degree of closeness between the challenged statements and the asserted public interest; the assertion of a broad and amorphous public interest is not sufficient. 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.” Finally, “those charged with defamation cannot, by their own conduct, create their own defense by making the claimant a public figure.” A person cannot turn otherwise private information into a matter of public interest simply by communicating it to a large number of people.
(Weinberg, supra, at pp. 1132-1133, internal citations omitted.)
Defendants fail to show that the alleged statements are anything other than a private dispute between a consumer and a contractor over the quality of services provided. The fact that the dispute may be of some limited interest to the small subset of the public that seeks to hire a contractor to repair or remodel their homes does not transform the dispute into an issue of public interest.
Defendants also argue that the defamation cause of action is based on statements that, according to Defendants, are mere opinions and not actionable libel. However, when a defendant does not show that a protected activity underpins the plaintiff’s claims, it is irrelevant for purposes of the anti-SLAPP statute whether the plaintiff has shown a probability of prevailing on his or her claims. (Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal App 4th 435, 445, citing Freeman v. Schack (2007) 154 Cal.App.4th 719, 733 [“merits based arguments have no place in our threshold analysis of whether plaintiffs’ causes of action arise from protected activity”].)
Defendants’ request for fees and costs is DENIED. (See CCP, § 425.16, subd. (c) [authorizing an award of fees and costs to a defendant only where the defendant prevails on its anti-SLAPP motion].)