Case Number: BC529960    Hearing Date: July 08, 2014    Dept: 34

Moving Party: Defendant L. Andrew Gifford

Resp. Party: Plaintiff William S. Lund

Defendant’s special motion to strike plaintiff’s complaint is GRANTED.

Defendant’s Request for Judicial Notice of DENIED as to exhibits A, B, H, and I through AA because defendant fails to provide certified copies. (See Super. Ct. L.A. County Local Rules, rule 3.8(b).) Defendant’s Request for Judicial Notice is GRANTED as to the remaining items requested by defendants because they are records of this Court. (See Evid. Code, § 452(d).)

Plaintiff’s Objections to the Declaration of L. Andrew Gifford:

Objection
1 SUSTAINED
2 OVERRULED
3 SUSTAINED
4 SUSTAINED

Defendant’s Objections to the Declaration of William S. Lund:

Objection
1 SUSTAINED
2 OVERRULED
3 SUSTAINED
4 SUSTAINED
5 SUSTAINED
6 SUSTAINED

PRELIMINARY COMMENTS:

The Court notes that plaintiff’s memorandum in opposition is 17 pages long, is written in 11- or 11.5-point font and uses extensive footnotes, which are written in a 9-point font. The Court assumes that the use of a smaller-than-permitted font and footnotes is a further attempt to circumvent the 15-page limit for memoranda. (See Cal. Rules of Court, Rule 2.104 and Rule 3.1113(d).) The Court declines to consider these footnotes.

BACKGROUND:

Plaintiff commenced this action on 12/23/13 against defendant for slander. Plaintiff alleges that defendant caused to be published a statement wherein L. Andrew Gifford said that plaintiff was forced out as a trustee by his own misconduct. (Compl., ¶ 6.) The publication concerned plaintiff and was so understood by those who read it. (Id., ¶ 7.) Plaintiff alleges that the publication is false because plaintiff resigned as the trustee pursuant to a settlement agreement which specifically stated that the resignation was not based on any wrongdoing or misconduct of plaintiff. (Id., ¶ 8.) Plaintiff alleges defendant acted with malice in publishing the statement. (Id., ¶¶ 13-17.)

ANALYSIS:

In determining whether to grant or deny a defendant’s section 425.16 special motion to strike, the court must engage in a two-step process. (Shekhter v. Financial Indemnity Co. (2001) 89 Cal.App.4th 141, 150.) First, the court must decide whether the defendant has met the threshold burden of showing that the plaintiff’s cause of action arises from the defendant’s constitutional rights of free speech or petition for redress of grievances. (Ibid.) This burden may be met by showing that the act which forms the basis for the plaintiff’s cause of action was an act that falls within one of the four categories of conduct set forth in section 425.16, subdivision (e).

If the defendant meets his or her initial burden, then the burden shifts to the plaintiff to establish a probability that the plaintiff will prevail on the claim; i.e., present facts which would, if proved at trial, support a judgment in the plaintiff’s favor. (Shekhter, supra, at pp. 150-151.) “[A]n action may not be dismissed under this statute if the plaintiff has presented admissible evidence that, if believed by the trier of fact, would support a cause of action against the defendant.” (Taus v. Loftus (2007) 40 Cal.4th 683, 729.) “The plaintiff need only establish that his or her claim has ‘minimal merit’ [citation] to avoid being stricken as a SLAPP.” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.) The opposing parties’ burden as to an anti-SLAPP motion is like that of a party opposing a motion for summary judgment. (See, e.g., DaimlerChrysler Motors Co. v. Lew Williams, Inc. (2006) 142 Cal.App.4th 344, 352.) The court does not “weigh credibility [nor] compare the weight of the evidence. Rather, [the court] accept[s] as true the evidence favorable to the plaintiff [citation] and evaluate[s] the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.” (Flatley v. Mauro (2006) 39 Cal.4th 299, 326 [internal quotations omitted].) Whether complainants have satisfied their burden is a question of law. (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.)

A. First Prong – Defendant’s Alleged Statement Arises from Protected Activity

Plaintiff alleges that defendant slandered him by causing the following statement to be published: “I have no desire to destroy the Lund family” … “[Plaintiff] was forced out of the trust by his own misconduct.” (Compl., ¶ 6.) As indicated below, Defendant has established that this statement constitutes protected activity.

In determining whether a defendant seeking to strike a claim under the anti-SLAPP statute has made a prima facie showing that the plaintiff’s action arises from activity protected by statute, the critical consideration is whether the plaintiff’s cause of action itself, and the act which the plaintiff complains of, is based on an act taken by defendant in furtherance of his right of petition or free speech. (See, e.g., Philipson & Simon v. Gulsvig (2007) 154 Cal.App.4th 347, 358; Birkner v. Lam (2007) 156 Cal.App.4th 275, 281.) “The anti-SLAPP statute’s definitional focus is not on the form of the plaintiff’s cause of action but, rather, the defendant’s activity that gives rise to his or her asserted liability-and whether that activity constitutes protected speech or petitioning.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 92 [emphasis in original].) The statute is to be broadly applied and includes four categories of protected conduct:

(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, or (4) 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.

(Code Civ. Proc., § 425.16(e).)

Defendant first argues that plaintiff’s claims are based on defendant’s conduct relating to protected speech activity in connection with an issue under consideration or review by a judicial proceeding or any other official proceeding authorized by law. (Code Civ. Proc., § 425.16(e)(2).) The SLAPP statute applies to statements made to persons that are not parties or potential parties to the litigation, where the statements were made “ ‘in connection with’ pending or anticipated litigation.” (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1269.)

Defendant cites to Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146. The parties in Annette F. had been opposing parties in litigation pertaining to their dissolved relationship and adoption of the defendant’s son. (Id. at pp. 1156-1157.) The litigation received widespread media coverage. (Id. at p. 1157.) While the litigation was pending, the defendant wrote a letter to a third party and sent the letter to a publication wherein she accused the plaintiff of being “a convicted perpetrator of domestic violence against me” who “has made repeated false accusations of child abuse and neglect against me.” (Id. at p. 1158.) The plaintiff thereafter filed a libel action and defendant moved to strike under the anti-SLAPP statute. (Ibid.) The appellate court found that the statements were made in connection with an issue under consideration and review by a judicial body. (Id. at pp. 1160-1161.) The court noted that the underlying litigation was still pending when the letter was published and that the allegations of domestic violence and abuse and neglect were directly at issue in the underlying litigation. (Id. at p. 1161.)

Here, the subject statement pertained to a petition filed by the other trustees of plaintiff’s children’s trust in October 2009 to remove plaintiff as a co-trustee. (RJN, Exh. C.) Several weeks later, plaintiff and his son filed responsive petitions to remove the other trustees. (RJN, Exh. D.) On 9/14/10, the parties in the trust litigation reached a settlement agreement which included, among other things, the following terms: plaintiff would resign as co-trustee and his son’s trust would pay him $500,000.00 per year for the rest of his life. (RJN, Exh. F.) The Court approved the settlement agreement on 11/12/10. (Ibid.) It is undisputed that the alleged statement was made in October 2010 – prior to the Court’s approval of the settlement agreement. (See Gifford Decl., ¶¶ 11-13.)

This evidence shows that the statement was made while the trust litigation was still pending. Though the settlement agreement had been reached, there is no showing that the Court was aware of the settlement when the statement was made; thus, the dispute was still under consideration by the Court at the time of the statement. Even if the Court had been aware of the settlement, the Court could have refused to approve the settlement. The allegations as to whether plaintiff was to be forced out of the trust due to his own misconduct was directly at issue in the trust litigation. Therefore, the Court finds that the statement is protected speech under section 425.16(e)(2).)

Defendant next argues that plaintiff’s claims are based on conduct relating to protected speech activity in the exercise of his rights to free speech in a public forum and in connection with an issue of public interest. (Code Civ. Proc., § 425.16(e)(3).) The statement was in a public forum because it was posted in a newspaper article on the internet. (See Gifford Decl., ¶¶ 11-13, Exh. 2; Kronemyer v. Internet Movie Data Base, Inc. (2007) 150 Cal.App.4th 941, 950.) The primary dispute as to this argument is whether the statements were connected with an issue of public interest.

Section 425.16 does not define “an issue of public interest.” Nevertheless, the 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. [Citation.]

Being based on case law, the precise boundaries of a public issue have not been defined. Nevertheless, in each case where it was determined that a public issue existed, “the subject statements either concerned a person or entity in the public eye [citations], conduct that could directly affect a large number of people beyond the direct participants [citations] or a topic of widespread, public interest [citation].” [Citation.]

(Hailstone v. Martinez (2008) 169 Cal.App.4th 728, 736-737.)

In his complaint, plaintiff describes himself as a “well respected … entrepreneur with a legacy of professional accomplishments” who “has enjoyed a stellar reputation in business for his philanthropic service.” (Compl., ¶¶ 4-5.) Plaintiff states that he was the president and chairman of the Board of California Institute of the Arts, CEO of Newport Development Company, and served as a director or officer of several other prominent corporations. (Id., ¶ 5.) In 2010, the Arizona Republic published a lengthy article which discussed the allegations that plaintiff had improperly profited from trust transactions. (Gifford Decl., ¶¶ 11-13, Exh. 2.) There have been other public articles about the disputes between plaintiff’s family and the trust. (See id., Exhs. 3, 6-8.) This evidence is sufficient to show that the statements were related to a matter of concern to a substantial number of people. Therefore, the Court finds that the statement is protected speech under section 425.16(e)(3).

Plaintiff argues that the statement cannot be protected speech because it is commercial speech exempted from the anti-SLAPP statute’s protections.

Section 425.16 does not apply to any cause of action brought against a person primarily engaged in the business of selling or leasing goods or services, including, but not limited to, insurance, securities, or financial instruments, arising from any statement or conduct by that person if both of the following conditions exist:

(1) The statement or conduct consists of representations of fact about that person’s or a business competitor’s business operations, goods, or services, that is made for the purpose of obtaining approval for, promoting, or securing sales or leases of, or commercial transactions in, the person’s goods or services, or the statement or conduct was made in the course of delivering the person’s goods or services.

(2) The intended audience is an actual or potential buyer or customer, or a person likely to repeat the statement to, or otherwise influence, an actual or potential buyer or customer, or the statement or conduct arose out of or within the context of a regulatory approval process, proceeding, or investigation, except where the statement or conduct was made by a telephone corporation in the course of a proceeding before the California Public Utilities Commission and is the subject of a lawsuit brought by a competitor, notwithstanding that the conduct or statement concerns an important public issue.

(Code Civ. Proc., § 425.17(c).)

Section 425.17(c) has been interpreted

to exempt from the anti-SLAPP law a cause of action arising from commercial speech when (1) the cause of action is against a person primarily engaged in the business of selling or leasing goods or services; (2) the cause of action arises from a statement or conduct by that person consisting of representations of fact about that person’s or a business competitor’s business operations, goods, or services; (3) the statement or conduct was made either for the purpose of obtaining approval for, promoting, or securing sales or leases of, or commercial transactions in, the person’s goods or services or in the course of delivering the person’s goods or services; and (4) the intended audience for the statement or conduct meets the definition set forth in section 425.17(c)(2).

(Simpson Strong-Tie Company, Inc. v. Gore (2010) 49 Cal.4th 12, 30.)

Plaintiff argues that the statement is commercial speech because defendant provides trustee services, the trust hired a public relations consultant to assist with the media attention brought to the trusts, and defendant participated in the interview in order to produce facts and avoid impediments to business dealings that could result from the publication of misinformation. (See Gifford Decl., ¶ 11; Troncali Decl., Exh. A.) At most, this evidence suggests that there may have been business purposes behind the interview. This does not mean that the particular statement constituted commercial speech. There is no showing that plaintiff is a “business competitor” such that the statement constitutes a statement of fact as to a business competitor’s operations or services. There is no showing that the statement that plaintiff was forced out of the trust due to his misconduct was made for the purpose of obtaining or securing sales of defendant’s goods or services. It does not appear that the intended audience was solely actual or potential customers, because the statement was published in a newspaper article, and not a forum specifically discussing defendant’s services as a trustee. Therefore, plaintiff has not established that the statement is commercial speech.

Defendant has met his burden of establishing that plaintiff’s claims are based on his protected speech under the anti-SLAPP statute. The burden now shifts to plaintiff to establish a probability of prevailing on the merits.

B. Second Prong – Plaintiff Has Not Met His Burden of Showing a Probability of Prevailing on the Merits because the Complaint is Barred by the Applicable Statute of Limitations

Once a defendant has established that the anti-SLAPP statute applies, the burden shifts to the plaintiff to demonstrate a “probability” of success on the merits. (Code Civ. Proc., § 425.16(b); Equilon Enterprises LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) “[A] 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.” (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548.)

The evidentiary showing by the plaintiff must be made by competent and admissible evidence. (Morrow v. Los Angeles Unified School District (2007) 149 Cal.App.4th 1424, 1444; see also Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1497-98 [proof cannot be made by declaration based on information and belief]; Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1236-38 [documents submitted without proper foundation could not be considered in determining plaintiff’s probability of prevailing on its claim].) The trial court properly considers the evidentiary submissions of both the plaintiff and the defendant, but it may not weigh the credibility or comparative strength of the evidence and must instead simply determine whether the plaintiff’s evidence would, if believed by the trier of fact, be sufficient to result in a judgment for plaintiff. (McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 108-09.) Further, “[w]hether or not the evidence is in conflict, if the plaintiff has presented a sufficient pleading and has presented evidence showing that a prima facie case will be established at trial, the plaintiff is entitled to proceed.” (Moore v. Shaw (2004) 116 Cal.App.4th 182, 193.)

“The tort of defamation ‘involves (a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage.’ [Citation.]” (Taus v. Loftus (2007) 40 Cal.4th 683, 720.) “[F]alse statements charging the commission of crime or tending directly to injure a plaintiff in respect to his or her profession by imputing dishonesty or questionable professional conduct are defamatory per se.” (Burrill v. Nair (2013) 217 Cal.App.4th 357, 383.) “If the person defamed is a public figure, he cannot recover unless he proves, by clear and convincing evidence [citation], that the libelous statement was made with ‘ “actual malice” — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.’ [Citation.]” (Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 256.)

Defendant argues that plaintiff’s claims fail because they are barred by the applicable statute of limitations. An action for slander is governed by a one-year statute of limitations. (See Code Civ. Proc., § 340(c).) Gifford made the subject statement, and it was first published by the Arizona Republic, in October 2010. (See Gifford Decl., ¶¶ 11-13.) In November 2013, the statement was re-published in articles by other publications. (See id., ¶ 14, Exh. 3.) The instant complaint was filed in December 2013. It therefore must be determined whether the November 2013 publications re-set the statute of limitations.

“Under the single-publication rule, with respect to the statute of limitations, publication generally is said to occur on the ‘first general distribution of the publication to the public.’ (Shively v. Bozanich (2003) 31 Cal.4th 1230, 1245.)

In Schneider v. United Airlines, Inc. (1989) 208 Cal.App.3d 71, the defendant had submitted information to a consumer credit reporting organization with the intention that the organization would publish the information. (Id. at p. 74.) The organization published the information to a bank more than a year before the plaintiffs commenced their action, and then republished the false statements to another bank within the statute of limitations. (Ibid.) The court of appeals held that the cause of action for defamation accrued upon the republication. (Ibid.) The court noted that “the originator of the defamatory matter can be liable for each ‘ “repetition” ’ of the defamatory matter by a second party, ‘ “if he could reasonably have foreseen the repetition.” ’ [Citation.]” (Id. at p. 75.) The court noted that the plaintiffs’ allegations were based solely on the re-publication. (Ibid.) The court found that the Uniform Single Publication Act was inapplicable.

The Uniform Single Publication Act (Civ.Code, §§ 3425.1–3425.5) is not applicable to the instant case even though the same alleged defamatory matter was published and republished. The Act provides there is only one publication in mass communications of a single article in a newspaper or book or magazine which is distributed to more than one person. The Act was designed “to protect a publisher who prints numerous copies of libelous matter, which copies are then distributed over a substantial period of time. A new cause of action for libel does not arise each time a new reader purchases the material. The protection of the act is not extended, however, to situations where, knowing that matter is allegedly libelous, the defendant republishes.” [Citation.] “ ‘[T]he single publication rule … does not include separate aggregate publications on different occasions…. In these cases the publication reaches a new group and the repetition justifies a new cause of action.’ ” [Citation.] “The cases in California and elsewhere which have evaluated the Uniform Single Publication Act demonstrate that the act was not designed to give unending immunity for repeated publications of libelous matter.” [Citation.] As noted above, where republication reaches a new entity or person, repetition justifies a new cause of action. The second publication by [the reporting organization] is the publication under consideration in this case. The exhibits demonstrate that each publication reached a different entity.

(Id. at p. 76.)

Plaintiff fails to establish that Schneider is applicable here. Plaintiff argues that it was reasonably foreseeable that the statement would be repeated because defendant participated in the interview out of concern that misinformation could impede the trust’s ability to conduct business. (See Troncali Decl., Exh. A.) This alone does not establish that defendant had any reason to believe that the statement would be published anywhere other than the article for which he was interviewed. Defendant declares that he never met, spoke to, or communicated with the reporter who re-published the statement. (Gifford Decl., ¶ 16.) Unlike in Schneider, where it was undisputed that the information was separately published to two different banks, here it is unclear if the republication reached a new audience. In Schneider it was undisputed that the claims were based on the second publication; here it is unclear from the allegations whether plaintiff’s claims are based on the first publication, the republication, or both. Indeed, the evidence suggests that the claims are based on the first publication. (See Lund Decl., ¶ 13, Exh. B.) Therefore, plaintiff’s claims are barred by the statute of limitations.

Defendant’s motion to strike plaintiff’s complaint pursuant to section 425.16 is GRANTED. Defendant may bring a subsequent motion for attorney’s fees and costs incurred in bringing the instant motion. (See Code Civ. Proc., § 425.16(c)(1).)