Filed 10/9/19 Curamus Management, Inc. v. Swiech CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

CURAMUS MANAGEMENT, INC. et al.,

Plaintiffs and Respondents,

v.

EUGENE SWIECH,

Defendant and Appellant.

D074990

(Super. Ct. No. 37-2018-00032690- CU-DF-CTL )

APPEAL from an order of the Superior Court of San Diego County, Judith F. Hayes, Judge. Affirmed.

Law Office of Ryan T. Darby and Ryan T. Darby for Defendant and Appellant.

Brian Matthew Cook, Christina Marie Denning; Mazur & Mazur, Janice R. Mazur for Plaintiffs and Respondents.

Aaron Levine and Curamus Management, Inc. (Curamus) (Levine and Curamus together Respondents) brought suit against Eugene Swiech for claims arising out of allegedly defamatory statements Swiech made on a website he created to criticize Respondents. In response to the complaint, Swiech filed a motion to strike the complaint under Code of Civil Procedure section 425.16, the anti-SLAPP (strategic lawsuit against public participation statute). The superior court denied the motion.

Swiech appeals, contending the superior court erred in determining that the statements made on the subject website did not concern a public matter. He further maintains that Respondents’ complaint runs afoul of the anti-SLAPP statute and his motion should have been granted. We conclude his arguments are without merit and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

We state the background facts in this anti-SLAPP context from the complaint’s allegations and the evidence proffered in connection with the motion.

Levine is the owner of Curamus, which manages small homeowners’ associations in San Diego. Stratford Woods Homeowners Association (Association) is one of Curamus’s clients. The Association is located near the coast in Del Mar. Swiech lives in Del Mar “up the hill from the Stratford Woods community,” which is run by the Association. Swiech does not live in the Stratford Woods community and is not a member of the Association.

For several months, Swiech asked the Association to trim trees that were blocking his view. The Association did not trim the trees to his satisfaction. After Swiech learned that Curamus managed the Association, Swiech retaliated against the HOA, Curamus, and Levine. Swiech contacted Curamus and Levine on numerous occasions demanding the trees be trimmed and threatening legal action and negative Yelp reviews. Neither Curamus nor Levine had the authority to order the Association to trim the subject trees.

Swiech began an online campaign against Respondents. He created a “fake website pretending to be Curamus . . . on which he . . . made and continues to make false and misleading statements.” The website, curamus-management.com, includes an image of Levine drinking wine as well as Curamus’s logo, which has been “doctored to read ‘We Mess Up Curamus Management.’ ” The website also includes the following statements about Curamus: “We Mess Up,” “Did not do a good job with East Bluff,” “Not doing a good job with Stratford Woods,” “No respect for the community,” “Does not take time to work with people,” “Not good with costal [sic] properties,” and “Does not control costs well.”

Swiech also expressed his displeasure with the Association’s refusal to trim the trees to his liking through numerous emails to Levine. Swiech’s language is harsh and, at times, threatening. For example, his emails have included the following: “You and Stratford Woods are the laughing stock of Del Mar”; “Trees are ready to fall”; “Time to Yep [sic]”; “Website getting hundreds of hits”; “LEAVE DEL MAR !!!”; “Can you say search engine optimization”; “Stratford Woods HOA Del Mar now 1st or 2nd hit”; “The story will be told !!”; “I will update the [sic] both websites with more information including my opinions”; “You and Ben [the Association’s president] are what we don’t want in Del Mar”; “Left a message. You guys WILL NOT BLOCK MY VIEW. The issue WILL NOT GO AWAY !!”; “The issue regarding the trees will escalate next year. Please inform Ben that legal action is likely to protect our interests. After researching HOA finances it is easy to conclude the HOA is broke and defuncted [sic]. Going directly after the 18 people that live there is not out of the question”; “Based on your reserves you cannot afford litigation”; and “Tell Ben to go FUCK himself . . . .”

Swiech also used his Facebook page to complain about Curamus, Levine, and the Association. For example, he posted, “Trim the trees” and “These people suck.”

Respondents sent a cease and desist letter to Swiech demanding that he take down the website and stop defaming Respondents. Swiech refused to comply with the demand; therefore, Respondents brought suit against Swiech, alleging causes of action for defamation, intentional infliction of emotional distress, and intentional interference with economic advantage.

In response to the complaint, Swiech brought an anti-SLAPP motion to strike all three causes of action. In doing so, Swiech argued the complaint originated as “a neighbor dispute” because his “view of the ocean ha[d] been blocked by the growth of diseased trees in a residential complex with a homeowners association run by . . . Curamus . . . .” Swiech also noted that the trees are “adjacent to a major roadway” and “would present a public safety hazard” if they fell due to “their diseased state[.]” He maintained that he was sued merely for acting like “any good American in 2018” and using “the internet to exercise his right to free speech by sharing his opinions of the management of the homeowners’ association.” He admits that the catalyst for his actions is Curamus’s refusal to trim the trees to his satisfaction.

In his motion, Swiech emphasized that all of Respondents’ causes of action “arise from protected activity because they are based on statements about the conduct of a homeowners’ association[.]” Swiech asserted that the speech at issue was made in a public forum concerning a matter of public interest. He also insisted that Respondents could not prevail on the merits.

In support of the anti-SLAPP motion, Swiech submitted his own declaration. In that declaration, he stated that the subject trees “have progressively blocked the view of the ocean from [his] home.” He also claimed the “trees appear to be diseased, with discoloration of their leaves[,] [and] [s]hould the trees fall, they could potentially injure pedestrians and automobiles on Camino Del Mar.” In addition, Swiech explained that he repeatedly asked Curamus to trim the trees, but it refused to do so. “Dissatisfied with this situation, [he] created a website to exercise [his] constitutional right to free speech and express [his] opinions of Curamus and their management of Stratford Woods.”

In opposing the anti-SLAPP motion, Respondents contended that Swiech did not show that his acts were taken in furtherance of his right to free speech. Specifically, Respondents took issue whether Swiech’s speech concerned a matter of public interest.

At the hearing on the anti-SLAPP motion, Respondents, in arguing that the motion should be denied, discussed Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107 (Du Charme). They had not cited to this case in their opposition. The superior court thus ordered supplemental briefing to address Du Charme. Accordingly, the parties submitted supplemental briefs regarding that case.

After the submission of the supplemental briefs, the court issued a written minute order, denying the anti-SLAPP motion. The court found that Swiech did not show that his speech concerned an issue of “public interest.”

Swiech timely appealed.

DISCUSSION

I

ANTI-SLAPP MOTION

A. Anti-SLAPP Law and Standard of Review

“A SLAPP suit is ‘a meritless lawsuit “filed primarily to chill the defendant’s exercise of First Amendment rights.” ‘ [Citation.] California’s anti-SLAPP statute allows a defendant to move to dismiss ‘certain unmeritorious claims that are brought to thwart constitutionally protected speech or petitioning activity.’ [Citation.]” (Medical Marijuana, Inc. v. ProjectCBD.com (2016) 6 Cal.App.5th 602, 613.) Per the anti-SLAPP statute: “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.” (§ 425.16, subd. (b)(1).)

A two-step analysis is required when the superior court is requested to rule on a special motion to strike under the anti-SLAPP statutory framework. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)

Our high court summarized the showings and findings required by section 425.16, subdivision (b) as follows:

“At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them. When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage. If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached. There, the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff’s showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is stricken. Allegations of protected activity supporting the stricken claim are eliminated from the complaint, unless they also support a distinct claim on which the plaintiff has shown a probability of prevailing.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 396.)

We review rulings on anti-SLAPP motions de novo. (Freeman v. Schack (2007) 154 Cal.App.4th 719, 727.) We also consider the pleadings, and supporting and opposing affidavits, ” ‘accept[ing] as true the evidence favorable to the plaintiff [citation] and evaluat[ing] the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.” ‘ ” (Ibid.)

B. Swiech’s Posts Do Not Relate to an Issue of Public Interest

The anti-SLAPP statute protects “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.” (§ 425.16, subd. (e)(3).) Similarly, section 425.16, subdivision (e)(4) protects 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,” but has no “public forum” requirement. Here, Swiech, who made the subject comments on a website, claims his speech was protected under subdivision (e)(3).

Postings on various websites accessible to the public qualify as public forums for purposes of the anti-SLAPP statute. (See, e.g., Chaker v. Mateo (2012) 209 Cal.App.4th 1138, 1144 (Chaker) [statements were made in a public forum when posted on Internet website and social networking website which provided open forum for members of the public to comment on a variety of subjects]; ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1006 [websites qualified as public forums].) Here, Swiech made his statements about Respondents on his website, which is accessible by members of the public. Accordingly, we conclude the website constitutes a public forum under the anti-SLAPP statute.

However, posting information on a website does not necessarily transform it into an issue of public interest. (D.C. v. R.R. (2010) 182 Cal.App.4th 1190, 1226 [“not every [website] post involves a public issue”].) Section 425.16 does not define “an issue of public interest,” but the statute has been found to apply in cases where an issue is of interest to a “definable portion of the public (a private group, organization, or community).” (Du Charme, supra, 110 Cal.App.4th at p. 119.)

The dispute in the instant action involves a single homeowner, Swiech, who is upset that the Association did not trim the trees to his liking. The Association consists of 18 units, and Swiech does not own one of those units. Instead, he owns a home that is not governed by the Association, and he complained to the Association that trees maintained by the Association were blocking his view of the ocean. Although the Du Charme court did not “determine what limitations there might be on the size and/or nature of a particular group, organization, or community” required to satisfy the statute (Du Charme, supra, 110 Cal.App.4th at p. 119), other courts have found a public interest to exist where a significantly larger portion of the public was directly impacted. (See, e.g., Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479 [allegedly defamatory statements about manager of a homeowners association governing 3,000 individuals in 1,633 homes pertained to issues of public interest within that particular community; statements were made during time when association was making decision concerning future management]; Ruiz v. Harbor View Community Assn. (2005) 134 Cal.App.4th 1456, 1468-1469 [letters written by homeowners association’s attorney fell within the anti-SLAPP statute, where the letters formed part of a debate concerning an ongoing dispute affecting residents of 523 lots].) The dispute here (between Swiech and Respondents) involves far less people than in Damon or Ruiz. Consequently, those two cases are of little help to Swiech in the instant action.

There also is no indication that any of the homeowners in the Stratford Woods community are involved in any controversy, dispute, or discussion surrounding the statements contained in Swiech’s posts. Although Stratford Woods homeowners, who may be concerned about the management of the Association, conceivably would be able to find the subject posts on curamus-management.com, Swiech cannot manufacture a broader dispute where one does not exist. “[A] person cannot turn an otherwise private matter into a matter of public interest simply by communicating it to a large number of people.” (Bikkina v. Mahadevan (2015) 241 Cal.App.4th 70, 82 (Bikkina).) Here, there is nothing in the record indicating that any homeowner in the Stratford Woods community was concerned with Curamus’s property management or looking for a new property manager to assist with the Association.

Swiech also asserts his statements are protected as he “made [them] because he was concerned that Curamus'[s] failure to trim the trees endangered public safety.” But Swiech’s claimed concern about public safety is “not closely connected to his actual statements.” (Bikkina, supra, 241 Cal.App.4th at pp. 82-83; id. at p. 84 [defendant’s “statements were only remotely related to the broader subject of global warming or climate change, and involved specific accusations of plagiarism and use of a contaminated sample”].) Although Swiech insists he created his website and posted comments about Respondents out of his earnest concern for public safety, the actual posts are devoid of any discussion of safety. Instead, the posts are aimed at Curamus’s business performance as alleged in the complaint (“We Mess Up,” “Did not do a good job with East Bluff,” Not doing a good job with Stratford Woods,” “No respect for the community,” “Does not take time to work with people,” “Not good with costal [sic] properties,” and “Does not control costs well.”) Nowhere in the posts does Swiech warn homeowners in the Stratford Woods community or the public at large about the dangers of the allegedly diseased trees. Swiech is not cautioning people to exercise caution when they walk or drive under the subject trees. Rather, he is belittling Curamus as a company. There is absolutely no connection between the posts on curamus-management.com to Swiech’s claimed public safety concern. (See Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 111 [although pollution is a matter of general public interest, defendants’ alleged statements “were not about pollution or potential public health and safety issues in general, but about [the plaintiffs’] specific business practices” and thus were not protected activity under § 425.16]; World Financial Group, Inc. v. HBW Ins. & Financial Services, Inc. (2009) 172 Cal.App.4th 1561, 1570 [” ‘The fact that “a broad and amorphous public interest” can be connected to a specific dispute is not sufficient to meet the statutory requirements’ of the anti-SLAPP statute.”].)

Finally, Swiech asserts that his statements are protected under section 425.16 because they are providing consumer information. In other words, Swiech claims his posts were made for the purpose of advising consumers to avoid Curamus. In support of his position, Swiech relies on Wilbanks v. Wolk (2004) 121 Cal.App.4th 883 (Wilbanks) and Chaker, supra, 209 Cal.App.4th 1138. Neither case is helpful here.

In Wilbanks, defendant Wolk, a self-styled “consumer watchdog” in the viatical insurance industry, maintained a website that provided “information about those who broker life insurance policies, including information about licenses, suits brought by clients against brokers and investigations of brokers by governmental agencies.” (Wilbanks, supra, 121 Cal.App.4th at p. 889.) In connection with that purpose, she published allegedly defamatory statements suggesting that plaintiffs, a broker of viatical settlements and its principal, had engaged in wrongful conduct against their customers and were under state investigation. In concluding that the posting involved matters of public interest, the Wilbanks court first made clear that the issue of plaintiffs’ business practices, in and of itself, did not meet the normal criteria for matters of public interest, since “plaintiffs are not in the public eye, their business practices do not affect a large number of people and their business practices are not, in and of themselves, a topic of widespread public interest.” (Id. at p. 898.) However, the court nonetheless concluded that the posting was protected, because it was “in the nature of consumer protection information. . . .” (Id. at p. 900.)

As the Wilbanks court explained, “It is undisputed that Wolk has studied the industry, has written books on it, and that her Web site provides consumer information about it, including educating consumers about the potential for fraud. As relevant here, Wolk identifies the brokers she believes have engaged in unethical or questionable practices, and provides information for the purpose of aiding viators and investors to choose between brokers. The information provided by Wolk on this topic, including the statements at issue here, was more than a report of some earlier conduct or proceeding; it was consumer protection information.” (Wilbanks, supra, 121 Cal.App.4th at p. 899.) In other words, Wolk’s statements about plaintiffs were made in connection with her overarching goal of providing consumer protection information to those interested in the viatical industry, and “[i]n the context of information ostensibly provided to aid consumers choosing among brokers. . . .” (Id. at p. 900.)

The same cannot be said of Swiech’s statements. Swiech was not publishing information about Respondents as part of a preexisting campaign to assist homeowners’ associations looking for management companies. There is no indication in the record that Swiech has studied the property management industry. Instead, Swiech was upset because Curamus would not trim the subject trees to his liking. He thus created a website that did not discuss the tree issue, but instead, took aim at Curamus’s business performance. As such, the posts at issue were not “consumer protection information.” They conveyed nothing more than Swiech’s claims about Curamus’s business performance, a subject that the Wilbanks court itself made clear would not meet the definition of a “public issue,” as “[Curamus is] not in the public eye, [its] business practices do not affect a large number of people and [its] business practices are not, in and of themselves, a topic of widespread public interest.” (Wilbanks, supra, 121 Cal.App.4th at p. 898.)

Similarly, Chaker, supra, 209 Cal.App.4th 1138 is not instructive here. In that case, the defendant posted derogatory comments about the plaintiff and his forensics business on the website “Ripoff Report.” (Id. at p. 1146.) The defendant’s statements included ” ‘You should be scared. This guy is a criminal and a deadbeat dad. . . .’ ‘I would be very careful dealing with this guy. He uses people, is into illegal activities, etc. I wouldn’t let him into my house if I wanted to keep my possessions or my sanity.’ ” (Id. at p. 1142.) The defendant also accused the plaintiff of picking up streetwalkers and homeless drug addicts. (Ibid.) We had “little difficulty finding the statements were of public interest. The statements posted to the Ripoff Report [website] about Chaker’s character and business practices plainly fall within the rubric of consumer information about Chaker’s ‘Counterforensics’ business and were intended to serve as a warning to consumers about his trustworthiness.” (Id. at p. 1146.)

In general, we would follow Chaker in situations where comments were posted on a consumer-oriented web page devoted to providing consumers with information about businesses, such as Yelp (see Wong v. Jing (2010) 189 Cal.App.4th 1354, 1366-1367), when such comments provide information that could assist others in choosing whether to patronize certain businesses. Typically, those comments qualify as statements made ” ‘in connection with an issue of public interest’ ” within the meaning of the anti-SLAPP statute. (See, e.g., Carver v. Bonds (2005) 135 Cal.App.4th 328, 343-344 [newspaper article about medical practitioner involved issue of public interest where information would assist others in choosing doctors].) The website at issue here (curamus-management.com) is not a consumer oriented website devoted to providing consumers with helpful information. Instead, based on the record before us, it appears to have been created to attack Respondents because Respondents would not do what Swiech demanded of them. Against this backdrop, we cannot say that Swiech’s posts are protected under Chaker, supra, 209 Cal.App.4th 1138.

In summary, this is not an anti-SLAPP case. Swiech is livid that Respondents did not trim certain trees that impede his view of the ocean. Motivated by his anger, he created a website and posted negative comments about Respondents, none of which mentioned trees or safety issues. This case has nothing to do with a lawsuit aimed at squelching free speech.

Having determined that Swiech has not met his burden with respect to the first step of the anti-SLAPP analysis, we need not reach the second question, whether Respondents demonstrated a probability of prevailing on the merits of his claims. (See City of Cotati v. Cashman (2002) 29 Cal.4th 69, 80-81.)

DISPOSITION

The order is affirmed. Respondents are entitled to their costs on appeal.

HUFFMAN, J.

WE CONCUR:

BENKE, Acting P. J.

GUERRERO, J.