Filed 3/19/20 Saunders v. Jannusi CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THOMAS A. SAUNDERS IV,

Plaintiff and Appellant,

v.

NOVEL JANNUSI,

Defendant and Respondent.

B292287

(Los Angeles County

Super. Ct. No. BC708882)

APPEAL from an order of the Superior Court of Los Angeles County, Barbara Ann Meiers, Judge. Reversed with directions.

Chassman & Seelig and Mark B. Chassman for Plaintiff and Appellant.

No appearance for Defendant and Respondent.

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Thomas A. Saunders IV appeals from the order of the trial court granting the special motion to strike under the anti-SLAPP statute (Code Civ. Proc., § 425.16) filed by Novel Jannusi, and dismissing half of the statements alleged in Saunders’s defamation complaint. We conclude that the complaint does not arise from protected activity as defined in subdivision (e) of section 425.16, and so we reverse the order with directions.

I. The underlying complaint

Saunders’s complaint for slander per se defamation alleged that in May 2018, Jannusi stated to at least one and probably more of Saunders’s friends, business associates, and others who knew Saunders, that Saunders physically abused and assaulted at least two of Saunders’s former girlfriends, and beat women with a stick. Saunders alleged he sustained $250,000 in damages and sought punitive damages against Jannusi.

II. Jannusi’s special motion to strike

Jannusi specially moved to strike the complaint pursuant to section 425.16 on the ground the claim arose from acts in furtherance of Jannusi’s right of petition or free speech and there was no probability that Saunders would prevail on the merits. The motion argued that this lawsuit was a “paradigm example” of the kind of case that falls within the ambit of the anti-SLAPP statute because domestic violence is an extremely important public issue and one in which the public takes interest. Jannusi next argued that Saunders could not prevail on the merits because Jannusi denied ever making the alleged statements. If Jannusi made the statements, they were true. The motion added that there was no evidence of any actual malice by Jannusi.

With his special motion to strike, Jannusi submitted a declaration denying that he said any of the statements alleged. He also included the declaration of M.F., Saunders’s former girlfriend, describing the abuse she suffered at Saunders’s hands, along with photographs of M.F.’s injuries, M.F.’s medical records, and a print-out of expletive-laced text messages from Saunders to M.F.

In addition, Jannusi requested that the trial court take judicial notice of case No. 17STR003137, in which M.F. requested a domestic violence restraining order against Saunders. The case file included M.F.’s memorandum of points and authorities, her declaration describing how she was admitted to the hospital after she awoke at the bottom of Saunders’s staircase, crying and with blood gushing from her head, and the temporary restraining order issued on September 26, 2017 by the trial court ordering Saunders to stay at least 100 yards away from M.F.

In case No. 17STR002127, M.F. alleged that she was terrified of Saunders. Her declaration described Saunders’s increasing emotional and physical abuse of her, slamming her against the stair railing, yelling at her, threatening to destroy her and her career, breaking into her home and hitting her with a painting, and finally coming at her in an uncontrollable rage after which she awoke at the bottom of the staircase with blood gushing from her head.

III. Saunders’s opposition

Saunders argued that his cause of action did not arise out of Jannusi’s protected speech because the statements at issue did not involve an issue of public interest. Saunders claimed he was not a public figure — despite his Instagram account in connection with his photography business — the slander only affected the direct participants, and Jannusi’s accusations were not a matter of widespread public interest. Also, Saunders argued that he had demonstrated a probability of prevailing because the statements were slanderous per se and he contradicted M.F.’s claims.

Saunders relied on a series of declarations. First, Narinder Singh confirmed that Jannusi made the alleged statements to her. Second, Sat Hari Khalsa declared that M.F. showed him a bruise on her arm and stated that Saunders had beat her. Khalsa confronted Saunders, who became upset and accused M.F. of lying. The following day, M.F. called Khalsa to apologize and relate an entirely different story in which M.F. was the assailant. Third, Anastacia Belmonte declared that although the incident involving the painting did in fact occur, M.F. never told Belmonte that Saunders broke into her house or physically assaulted her. Fourth, Saunders’s housekeeper America Perez declared that she was present when M.F. had an accident on the stairs and went to the hospital. Perez declared that when describing the incident, M.F. used the word accident but never appeared to be afraid of Saunders or claimed that he hit her. Finally, Saunders declared he never assaulted any of his girlfriends. Saunders was confident that Jannusi made these statements to people other than Singh. In addition to these declarations, Saunders attached to his opposition the register of actions in M.F.’s suit against Saunders showing that on October 17, 2017, the temporary restraining order was reissued, but that on November 7, 2017, the trial court dismissed case No. 17STR002127 for lack of prosecution after no party appeared, and on November 14, 2017 M.F. requested the action be dismissed.

IV. Jannusi’s reply

Jannusi replied that domestic violence is an extremely important public issue in our society and there is no evidence of any actual malice. Jannusi also observed that Saunders has 7,090 followers on his Instagram account.

V. The trial court’s ruling

The trial court granted Jannusi’s motion in part and denied it in part. The court found two alleged statements constituted an exercise of protected speech under section 425.16, subdivision (e), (1) that Saunders beat up his girlfriend and (2) that Saunders had also hit other women with sticks. The court determined that these two statements related to a matter of public interest, namely violence against women, which has become a widespread problem and an area of major concern. The court noted that violence against women occurs serially and will go unabated if not treated as a public issue. Given “the astonishing amount of ‘serial conduct,’ ” exposure was necessary. The court cited the #MeToo movement and reasoned that it was “imperative that information be disseminated, when true, as soon as possible to prevent an offender from being able to date others after the first offence and put ‘roofies’ in their drinks or to prevent having children enrolled in a school where a pedophile teaches.”

Whether Saunders was a public or limited public figure was irrelevant, the court found, reasoning that the “exercise of speech to disclose acts of violence committed against women . . . are to be protected in their own right under [section] 425.16 without any need to be tied in to some other already recognized ‘public interest’ justification” such as the public-figure status of the Saunders. Statements like the ones at issue, the court found, constituted the releasing of information to a large and interested community because Saunders’s complaint implicitly assumed that once statements of this kind are shared, they will likely be shared again and disseminated to a potentially wide group of people, otherwise Saunders would not have sued to protect his reputation.

The trial court ruled Saunders could not prevail with respect to the alleged statement that he hit or beat his girlfriend because “truth is an absolute defense to a cause of action for slander.” The court allowed the remainder of the complaint to proceed. Saunders filed his timely appeal.

DISCUSSION

I. General principles of anti-SLAPP and the standard of review

Section 425.16, subdivision (b)(1) provides that, “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.”

“The anti-SLAPP statute does not insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384, first italics omitted.)

In evaluating an anti-SLAPP motion, the trial court first “determines whether the [moving] defendant has made a threshold showing that the challenged . . . action arises from protected activity,” that is, activity in furtherance of the rights of petition or free speech. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056; see generally § 425.16, subd. (e).) If the answer is yes, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the merits. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 819–820.)

On appeal, we review an order granting or denying a special motion to strike de novo. (Oasis West Realty, LLC v. Goldman, supra, 51 Cal.4th at pp. 819–820.) 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).) We examine the complaint in a fair and commonsense manner and we broadly construe the anti-SLAPP statute. (See ibid.) “[W]e neither ‘weigh credibility [nor] compare the weight of the evidence.’ ” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)

II. Protected activity under section 425.16, subdivision (e)

We are concerned here with protected activity under the so-called catchall provision, subdivision (e) of section 425.16. The catchall provision defines protected activity as “conduct in furtherance of the exercise of . . . the constitutional right of free speech in connection with a public issue or an issue of public interest.” (Ibid.) The trial court here concluded that statements made by Jannusi to at least one of Saunders’s associates constituted subdivision (e) protected activity because the issue of domestic violence against women is a topic of widespread public interest and should not be hidden. Also, the court assumed the statements would be released to the public at large, reasoning that otherwise Saunders would not have sued to protect his reputation.

Recognizing that courts “have struggled . . . to articulate the requisite nexus between the challenged statements and the asserted issue of public interest,” our Supreme Court in FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 149 (FilmOn) recently put forth “a two-part analysis” for analyzing the catchall provision, “to give meaning . . . to the ‘in connection with’ requirement” of subdivision (e) of section 425.16. (Italics added.) Under the FilmOn test, courts first ask “what ‘public issue or . . . issue of public interest’ the speech in question implicates—a question we answer by looking to the content of the speech.” (FilmOn, at p. 149.) Second, courts must ask “what functional relationship exists between the speech and the public conversation about some matter of public interest.” (Id. at pp. 149–150.)

The second prong of this in-connection-with test “moves from a focus on identifying the relevant matters of public interest to addressing the specific nature of defendant’s speech and its relationship to the matters of public interest.” (FilmOn, supra, 7 Cal.5th at p. 152.) According to FilmOn, “the catchall provision demands ‘some degree of closeness’ between the challenged statements and the asserted public interest. [Citation.] . . . ‘[I]t is not enough that the statement refer to a subject of widespread public interest; the statement must in some manner itself contribute to the public debate.’ ” (Id. at p. 150, italics added.) In this inquiry “we examine whether a defendant—through public or private speech or conduct—participated in, or furthered, the discourse that makes an issue one of public interest.” (Id. at p. 151, italics added.)

Subsequently, the Supreme Court clarified that a defendant who claims its speech was protected activity under the catchall provision “must show not only that its speech referred to an issue of public interest, but also that its speech contributed to public discussion or resolution of the issue.” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 900, italics added.)

III. The trial court erred in finding that the complaint arose out of protected activity.

Guided by the two-part inquiry, we are constrained to conclude that the statements Jannusi allegedly made do not qualify as protected speech. First, looking at the content of the alleged statements, they implicate violence against women. It is indisputable that violence against women is a matter of widespread concern, and that public conversations about domestic violence will help to shine a light on the problem to prevent it from continuing in secret.

However, “ ‘[I]t is not enough 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, italics added.) “We are not concerned with the social utility of the speech at issue, or the degree to which it propelled the conversation in any particular direction; rather, we examine whether a defendant – through public or private speech or conduct – participated in, or furthered, the discourse that makes an issue one of public interest.” (Id. at p. 151; Wilson v. Cable News Network, Inc., supra, 7 Cal.5th at p. 900.) This question requires us to consider “context – including audience, speaker, and purpose.” (FilmOn, at p. 152.)

Considering the audience and speaker , the alleged statements here were made orally and in private to no more than a few people, who are friends or acquaintances of Saunders only. And, Saunders is not a public figure. “ ‘[A]n individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. . . . [S]uch persons assume special prominence in the resolution of public questions.’ ” (D.C. v. R.R. (2010) 182 Cal.App.4th 1190, 1230.) Saunders was not in the middle of a particular public controversy, let alone one about violence against women, and the public is not fascinated by him. (See ibid.) Jannusi offers no evidence that Saunders was known to the public or had the public’s attention. His use of an Instagram account in pursuing his photography business does not, ipso facto, put him in the public eye. (See, e.g., id. at p. 1229.) Therefore, the alleged statements do not concern a person in the public eye or conduct that could directly affect large numbers of people beyond the participants of the May 2018 conversation. (See id. at p. 1230.)

The trial court assumed that the statements would necessarily be broadcast to large numbers of people because Saunders sued to protect his reputation. Were that true, then every defamation action would be strikable under the anti-SLAPP statute. “Publication for purposes of defamation is sufficient when the publication is to only one person other than the person defamed.” (Bindrim v. Mitchell (1979) 92 Cal.App.3d 61, 79.) Thus, the elements of slander were met here as soon as Singh heard Jannusi allegedly utter the statements. No further broadcasting was necessary for Saunders to sue.

As for the purpose of the alleged statements (FilmOn, supra, 7 Cal.4th at p. 152), the reports at issue in FilmOn did not further the public conversation on an issue of public interest because they were issued online, “privately, to a coterie of paying clients” (id. at p. 153) and were “generated for profit, exchanged confidentially, without being part of any attempt to participate in a larger public discussion” (id. at p. 140). Likewise here, the record contains no evidence that Jannusi made the statements as part of the public discourse. Jannusi’s alleged statements did not advance any public conversation about, or resolution of, the issue of domestic violence; the comments were intended simply to inform Saunders’s associates about Saunders’s misconduct. Thus, the context of the alleged statements – made in private to an audience of one, about a private person, that did not refer even tangentially to a public discussion about the problem of domestic violence in our society, let alone further the public discourse about it – demonstrates that the statements are not protected activity under section 475.16, subdivision (e) of the anti-SLAPP statute.

Having reached this conclusion, we need not address whether Saunders has a likelihood of prevailing on the merits of his claim. (See Wang v. Wal-Mart Real Estate Business Trust (2007) 153 Cal.App.4th 790, 794; Oasis West Realty, LLC v. Goldman, supra, 51 Cal.4th at pp. 819–820.)

DISPOSITION

The order is reversed. The matter is remanded to the trial court with directions to vacate its order granting in part and denying in part Jannusi’s anti-SLAPP motion, and to enter a new order denying the motion. Each party to bear his own costs on appeal.

NOT TO BE PUBLISHED.

DHANIDINA, J.

We concur:

EDMON, P. J.

LAVIN, J.