2013-00146665-CU-DF

Brian Detrick vs. Constance V. Conley

Nature of Proceeding: Motion to Strike (SLAPP)

Filed By: Kravitz, Jeffrey S.

Defendant Constance V. Conley’s Special Motion to Strike (anti-SLAPP) is ruled upon
as follows.

This action involves complaints lodged by Defendant against Plaintiff Brian Detrick to a
non-profit entity that had hired Plaintiff to perform certain event planning services.
Plaintiff alleges that in March of 2013, he entered into a contract with Courageous
Connection, a non-profit organization, to be the event planner for an upcoming
Courageous Connection event scheduled for May 1, 2013. Plaintiff alleges that in April
of 2013, Defendant sent two emails to Michael Jones, the Executive Director and
President of the Board of Directors for Courageous Connection. Plaintiff alleges that
these emails falsely accused Plaintiff of violating California law in connection with his
occupation, and falsely stated that hiring Plaintiff was in violation of California law and
would subject Courageous Connection to fines. Plaintiff alleges that as a result of
these emails, Mr. Jones informed Plaintiff that Courageous Connection would not be
doing business with Plaintiff in connection with future events. Plaintiff then filed this
action for libel and interference with prospective economic advantage.

Defendant now moves to strike Plaintiff’s complaint on the grounds that the action
arises out of Defendant’s protected activity and is subject to the anti-SLAPP statute,
CCP §425.16.

“The analysis of an anti-SLAPP motion thus involves two steps. First, the court decides
whether the defendant has made a threshold showing that the challenged cause of
action is one “arising from” protected activity. If the court finds such a showing has
been made, it then must consider whether the plaintiff has demonstrated a probability
of prevailing on the claim. Only a cause of action that satisfies both prongs of the anti-
SLAPP statute – i.e., that arises from protected speech or petitioning and lacks even
minimal merit-is a SLAPP, subject to being stricken under the statute.” (Oasis West
Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 819-820; citations omitted.)

Under CCP §425.16(e), protected activity, or an “‘act in furtherance of a person’s right
of petition or free speech under the United States or California Constitution in
connection with a public issue’ 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, 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.”

Defendant argues that she is a “community activist” in the City of Elk Grove, and has
concerns about the use of City sponsorship for non-profit organization events.
Defendant contends that Plaintiff is the son of Elk Grove Vice Mayor Steve Detrick and that the Vice Mayor promoted the Courageous Connection event for which Plaintiff
was hired as the event planner. Defendant argues that Plaintiff’s company, Brick
Events, listed the Courageous Connection event on its webpage and included a
solicitation for funds. Defendant also argues that the City of Elk Grove issued a
proclamation about the event, and that Courageous Connection has solicited and
received funds from the City of Elk Grove.

Defendant further argues that in addition to the emails described in Plaintiff’s
Complaint, she sent emails to public officials in the City of Elk Grove expressing her
concerns about the use of city sponsorship for non-profit events and questioning the
City’s diligence in vetting the registration of non-profits. (Conley Decl. Ex. 19, 20.)
Defendant also asserts that she has previously communicated with the Attorney
General’s Office concerning Plaintiff’s fundraising activities for the Elk Grove Police
Activities League. (Conley Decl. Ex. 24.) Defendant states that she reviewed the
Attorney General’s website and saw that there was a letter to Plaintiff entitled “Notice
to Register as a Commercial Fundraiser for Charitable Purposes” dated June 19,
2012. (Conley Decl. Ex. 24.) Defendant argues that in her second email to Mr. Jones,
she explained her belief that Plaintiff was in violation of the law because he had not yet
registered as a commercial fundraiser.

Defendant argues that her emails to Mr. Jones constitute protected activity because
they involve her exercise of her right of petition and free speech in connection with a
public issue – a charitable organization registered as tax-exempt soliciting funds from a
public entity. Defendant contends that although the communications at issue occurred
between private individuals, they occurred in the context of a broader controversy
involving public issues and are thus protected by the anti-SLAPP statute.

In so contending, Defendant cites Averill v. Superior Court (1996) 42 Cal.App.4th 1170
in support of her motion. In Averill, the defendant was an outspoken critic of a project
to locate a women’s shelter in her neighborhood. (Id. at 1175.) The defendant
petitioned the city council against the project, wrote to the local newspaper expressing
her concern regarding the project, and attempted to dissuade her employer from
supporting the project proponent as a Christmas charity. (Id.) In response, the project
proponent filed a lawsuit for slander and intentional interference with prospective
economic advantage based solely on the comments made by the defendant to her
employer. (Id. at 1173.) The court concluded that the defendant’s comments
constituted protected activity under the anti-SLAPP statute because “they arose in the
context of a public issue”. (Id. at 1175.) The fact that the plaintiff “carefully craft[ed] the
suit to exclude public comments, circumscribing the basis for the action to comments
petitioner made in private to her employer” did not remove the lawsuit from the purview
of the anti-SLAPP statute. (Id.) The court further held that “[e]ven if the statements
were not expressly covered under subdivision (e) of the statute, the categories
enumerated there are not all-inclusive” and “[w]e therefore cannot say the Legislature
intended to exclude private conversations from protection under the statute since the
list of covered activities does not act to eliminate such conversations from such
protection.” (Id.)

Defendant contends that the circumstances here are analogous to those in Averill .
Defendant argues that as in Averill , Plaintiff has carefully limited the communications
at issue to two emails allegedly sent by Defendant to Mr. Jones, even though those
communications took place within the broader context of Defendant’s voicing her
concerns about possible improper City sponsorship of non-profit events.
In opposition, Plaintiff contends that the emails to Mr. Jones do not constitute
protected activity because they are unrelated to Plaintiff’s other efforts to petition and
speak regarding the City’s practices with regard to non-profit entities. Plaintiff argues
that the issue of his registering as a commercial fundraiser is not relevant to the
alleged improper financial arrangement between Plaintiff, his father, City officials and
Courageous Connection. The Court disagrees. The email communications from
Defendant to City officials (Conley Decl. Ex. 19, 20) reflect Defendant’s concerns not
only with the ethical issues involved with City sponsorship of charity events, but the
City’s efforts to ensure that the non-profit entities to whom it provides funding are in
compliance with state laws and regulations. Defendant’s emails to Mr. Jones raise
concerns about Courageous Connection’s compliance with these requirements, and
assert that Courageous Connection’s compliance is jeopardized by Plaintiff’s failure to
register as a commercial fundraiser. Thus, Plaintiff’s alleged non-compliance with
registration requirements is related to the issues Defendant raised to City officials. In
light of the California anti-SLAPP (Strategic Lawsuit Against Public Participation)
statute’s stated purpose to encourage participation in matters of public importance or
consequence, the Court is required to construe the phrase “public issue or issue of
public interest” broadly.

The Court concludes that Defendant has demonstrated that this action arises out of
protected activity under the first prong of the anti-SLAPP analysis. “The fact that the
communication was made to other private citizens rather than to the official agency
does not exclude it from the shelter of the anti-SLAPP suit statute.” (Dove Audio, Inc.
v. Rosenfeld, Meyer & Susman, (1996) 47 Cal. App. 4th 777, 784.)

Having so concluded, the Court turns to the second prong, whether Plaintiff has a
probability of prevailing on the merits of his claims.

In support of his claim for libel/defamation, Plaintiff presents evidence that Defendant’s
statements that he was in violation of state law because he was not registered as a
commercial fundraiser are provably false. Plaintiff states in his declaration that he is
not a commercial fundraiser and has never been compensated based on the
percentage of the money raised through the events. (Detrick Decl. ¶4.) Plaintiff further
states that in June of 2012, he received an inquiry from an individual at the California
Attorney General’s office suggesting he had been operating as a commercial
fundraiser and seeking additional information. (Detrick Decl. ¶5.) Plaintiff states that he
provided the information requested, received no additional requests for information,
and was never informed by anyone at the Attorney General’s office that he was
required to register as a commercial fundraiser. (Detrick Decl. ¶6.) Instead, Plaintiff
states, the individual from the Attorney General’s office told him he was not a
commercial fundraiser. (Detrick Decl. ¶6.) Plaintiff also states that in March of 2013, he
was hired by Courageous Connection to plan its “Kick Off to National Foster Care
Month” event, and that he did not engage in any fundraising for any person or entity,
including Courageous Connection, in connection with planning the Kick Off event.
(Detrick Decl. ¶¶7-9.)

Plaintiff also contends that Defendant did not exercise reasonable care in ascertaining
whether the statements she made were true. Although Defendant presents a letter
from Mr. Jones to prospective donors that was posted on Plaintiff’s website, Plaintiff
contends the letter does not indicate Plaintiff is a commercial fundraiser. (Conley Decl.
Ex. 8.) Instead, as Plaintiff argues, the letter instructs prospective donors to first contact Mr. Jones, or “event planner Brian Detrick.” (Conley Decl. Ex. 8.)

Defendant presents the letter “Notice to Register as a Commercial Fundraiser for
Charitable Purposes” from the Attorney General’s Office as evidence that she believed
the statements were true. (Conley Decl. Ex. 24.) However, the letter states only that
“[b]ased on information reviewed by the Attorney General’s Registry of Charitable
Trusts, the captioned organization may be providing services in California as a
Commercial Fundraiser for Charitable Purposes.” (Conley Decl. Ex. 24.) Plaintiff
argues that this showing is insufficient to demonstrate that Defendant reasonably
believed the truth of her emails to Mr. Jones in which she asserted, among other
things, (1) “you have hired Brian Detrick to solicit monies on behalf of your charity.
Both of your actions are against State law and since you have failed to comply,
complaints can and will be filed, your charity will be fined;” (2) “Brian Detrick aka Brick
Events, has already violated California Government Code section 12586.1”; and (3)
“Neither Brian Detrick nor Brick Events are registered with State of California Attorney
General, Office of Charitable Trusts; therefore he violated all of the above California
Government Codes as required by the California State Attorney General…”. (Conley
Decl. Ex. 18, 25.) The Court agrees that Defendant failed to exercise reasonable care
in ascertaining the truth of her statements. As Defendant concedes in her declaration,
she is not an attorney, and yet she asserted that Plaintiff was in violation of state law.
Defendant’s statement in her declaration that she was “under the impression that
organizations that raise funds for charities also need to be registered,” is insufficient to
generate a reasonable belief that Plaintiff had committed a legal violation that would
subject Mr. Jones’ organization to fines.

Defendant also argues that her statements are protected by the qualified “common
interest” privilege under Civil Code §47(c). This section provides a privilege to
communications made without malice on occasions in which the speaker and the
recipient of the communication share a common interest. (Brown v. Kelly Broadcasting
Co. (1989) 48 Cal.3d 711, 719.) Defendant contends the statements fall within this
qualified privilege because they were “obviously directed only at a person who was
directly interested in the subject matter.” (Reply 6:5-6.) However, the common interest
privilege requires that both the speaker and the recipient have a shared interest or a
relationship that gives rise to “a reasonable ground for supposing the motive for the
communication to be innocent.” (Civil Code §47(c); see e.g. Cruey v. Gannett Co.
(1998) 64 Cal.App.4th 356, 369 (employees’ complaints to employer about sexual
harassment subject to the common interest privilege.) Here, Defendant offers no basis
for concluding that she and Mr. Jones had any prior relationship or common interest.
The Court is not persuaded that the statements are subject to the Civil Code §47(c)
privilege.

Although Defendant established that the action arises out of protected activity, Plaintiff
has presented sufficient evidence that he has a reasonable probability of prevailing on
his cause of action for libel/defamation. Defendant appears to concede on reply that a
showing of a probability of prevailing on the libel/ defamation claim is sufficient to
demonstrate a probability of prevailing on the remaining claims for interference with
prospective economic advantage.

Accordingly, the special motion to strike anti-SLAPP is denied.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.