City of Costa Mesa v. D'Alessio Investments
154 Cal. Rptr. 3d 698
Cal. Ct. App.2013Background
- City sued D’Alessio and tenants for a public nuisance at 440 Fair Drive; trial court issued preliminary injunctions in Aug 2011; D’Alessio added a cross-claim alleging slander, trade libel, and interference with prospective economic advantage by five City employees; City and employees moved to strike under §425.16 (anti-SLAPP), which the court granted in part and denied in part; cross-complaint alleged 11 statements to prospective tenants/contractors; proceeding involved City’s licensing/policy responses and related litigation.
- Trial court granted anti-SLAPP as to Shank and Ashabi only on the cross-claims; denied as to City, Lee, Nichols, Bouwens-Killeen; the cross-defendants appealed and D’Alessio cross-appealed.
- Court conducted de novo review of the anti-SLAPP order; held that the cross-claims arise from protected activity and that step two requires weighing merits, not truth of evidence at step one.
- At step two, evidence against Nichols, Bouwens-Killeen, and Ashabi supported dismissal; Ashabi’s and Lee’s statements were examined for falsity and protections; City and Lee’s asserted privileges were rejected; disposition remanded to grant anti-SLAPP as to Nichols, Bouwens-Killeen, and Ashabi, while maintaining denial as to City and Mel E. Lee on the cross-claims.
- The final note: Shank’s anti-SLAPP grant was correct; the cross-complaint’s misstatement of Bouwens-Killeen’s name was corrected in the opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the cross-claims arise from protected activity under §425.16(e)(2). | D’Alessio asserts statements to prospective tenants/contractors relate to a public issue. | City/Lee/Nichols contend statements were not protected activity. | Yes; step one shows protected activity. |
| Whether there was an issue under consideration by government bodies that the statements related to. | Cross-complaint statements connected to the City’s regulatory/licensing actions. | Statements not tied to government review. | Yes; executive and judicial review of the nuisance issue sufficed. |
| Whether the alleged statements were made in connection with the issue under review and thus actionable. | Statements targeted at potential licenses/permits connected to the City’s litigation. | Claims not sufficiently connected to governmental review. | Yes; statements were connected to the issue of illegal activity at the Property. |
| Whether D’Alessio proved a probability of prevailing at step two against Lee, City, Nichols, Bouwens-Killeen, Ashabi. | There is admissible evidence of false statements causing harm; falsity shown for Lee. | Some statements are true or protected; privileges/immunities apply. | Against Nichols, Bouwens-Killeen, Ashabi: anti-SLAPP granted; against Lee/City: anti-SLAPP denied. |
Key Cases Cited
- Maranatha Corrections, LLC v. Department of Corrections & Rehabilitation, 158 Cal.App.4th 1075 (Cal. App. 4th Dist. 2008) (defines ‘under consideration’ in § 425.16(e)(2) as matter kept before the mind or under inspection)
- Neville v. Chudacoff, 160 Cal.App.4th 1255 (Cal. App. 4th Dist. 2008) (protects statements in connection with litigation involving public interest)
- Schaffer v. City and County of San Francisco, 168 Cal.App.4th 992 (Cal. App. 4th Dist. 2008) (analyzes connection to an issue under consideration for § 425.16(e)(2))
- Coretronic Corp. v. Cozen O’Connor, 192 Cal.App.4th 1381 (Cal. App. 4th Dist. 2011) (two-step anti-SLAPP framework; merits not weighed at step one)
- Nizam-Aldine v. City of Oakland, 47 Cal.App.4th 364 (Cal. App. 1st Dist. 1996) (burden of proof on falsity when matter is of public interest)
- Mann v. Quality Old Time Service, Inc., 120 Cal.App.4th 90 (Cal. App. 4th Dist. 2004) (defamation standards for private plaintiffs on prima facie case)