Opinion
Dennis D’Alessio and D’Alessio Investments, LLC (collectively, D’Alessio), own commercial real property at 440 Fair Drive in Costa Mesa, California (the Property). In April 2011, the City of Costa Mesa (the City) sued D’Alessio and various tenants at the Property to abate a public nuisance—namely, alleged acts of prostitution at several massage establishments and the operation of medical marijuana dispensaries in violation of the City’s zoning code. The trial court granted preliminary injunctions in favor of the City in August 2011, enjoining the prohibited practices during the pendency of the action. In September 2011, D’Alessio filed a cross-complaint alleging the City and certain individual employees (George Nichols, Willa Bouwens-Killeen, Mel E. Lee, Melynda Shank, and Minoo Ashabi) committed slander, trade libel, and intentional interference with prospective economic advantage by making certain statements to D’Alessio’s potential tenants and construction contractors.
FACTS
Complaint
In April 2011, the City and the State of California filed an action for injunctive relief to abate a public nuisance pursuant to Civil Code sections 3494, 3496, 3479, and 3480, as well as Code of Civil Procedure section 731, Penal Code section 11225 et seq., and Business and Professions Code section 17200 et seq. The complaint named as defendants D’Alessio, 10 businesses operating at the Property (A1 Oriental Massage, Inc., Angel Spa, Fantastic Spa, Rainbow Spa, Relax Zone, Super Day Spa, Inc., Visage Spa, Herban Elements, Inc., Illuminade, Inc., and Medmar Patient Care Collective), and 16 individuals affiliated with the businesses.
The complaint alleged that the Costa Mesa Police Department had initiated an investigation into the activities of massage establishments at the Property in July 2010, which resulted in the collection of evidence of prostitution at these establishments as well as a variety of other noncriminal municipal code violations. The complaint further alleged that several of the defendant businesses were distributing marijuana in violation of the Costa Mesa Municipal Code and these businesses had other non-marijuana-related violations of the municipal code.
Preliminary Injunctions Granted
The court issued a preliminary injunction against the massage establishments and individuals affiliated therewith on August 1, 2011.
Cross-complaint
On September 12, 2011, D’Alessio filed a cross-complaint against the City and five of its employees. The cross-complaint alleged the five employees made 11 oral statements about D’Alessio that amounted to slander, trade libel, and interference with prospective economic advantage. The cross-complaint did not specify the date on which any of the statements were allegedly made or the context in which they were made, other than to allege they had occurred within the past year. The cross-complaint alleged the statements were made with “malice, hatred and ill will.”
George Nichols allegedly “told a prospective tenant of the Property that the Property has been raided by police from the City, and after the police documented the comings and goings at the Property and conducted surveillance there for over a year, they found illegal businesses operating there.”
Melynda Shank allegedly “told a prospective tenant at the Property that the City of Costa Mesa will not issue business licenses to anyone attempting to rent space at the Property because the City is in the middle of litigation with the owner of the Property due to illegal activity.” Shank also allegedly “told a construction contractor that the City of Costa Mesa will not issue business licenses to anyone attempting to rent space at the Property because the City is in the middle of litigation with the owner of the Property due to illegal activity and that [Dennis D’Alessio] is the owner who is involved with such illegal activity at the Property.” Shank also allegedly “told a construction contractor that Dennis D’Alessio has been arrested for prostitution and drug dealing that occurred at the Property.”
Minoo Ashabi allegedly “told a prospective tenant at the Property that the City of Costa Mesa will not issue business licenses to anyone attempting to rent space at the Property because the City is in the middle of litigation with the owner of the Property due to illegal activity.”
Mel E. Lee allegedly (1) “told a prospective tenant at the Property that Dennis D’Alessio has been convicted of prostitution and drug dealing that occurred at the Property”; (2) “told a prospective tenant at the Property that the Property is known for illegal activity including prostitution and drug dealing”; (3) “told a prospective tenant [at the Property] that the entire building at the Property is scheduled to be shut down because of illegal activity that is conducted there”; and (4) “told a prospective tenant at the Property that she should ‘look at other buildings’ because of the illegal activities being conducted at the Property.”
Anti-SLAPP Motion
The City and the employees responded to the cross-complaint with an anti-SLAPP motion on November 3, 2011. Elena Q. Gerli, a deputy city attorney for the City, attested to several pertinent facts. “Pursuant to City Policy and the Costa Mesa Municipal Code, the City has never issued business licenses for the operation of medical marijuana dispensaries.” “When the City’s Complaint was filed on April 22, 2011, the City stopped issuing any new business licenses for the Property, if the requested business licenses concerned activities or operations related to the City’s Complaint. This cessation of the issuance of business licenses for the Property was pursuant to the litigation concerning the Property.” “Pursuant to [a temporary restraining order issued on May 6, 2011], the City ceased issuing for the Property any building permits or new business licenses relating to medical
The five employee cross-defendants signed declarations in support of the anti-SLAPP motion. All of the employees denied making the statements attributed to them in the cross-complaint. All of the employees denied bearing any malice, hatred, or ill will toward D’Alessio, or having any reason to do so.
Four of the employees recall some conversations concerning the Property. Mel E. Lee, a senior planner with the City, remembered a conversation he had with a tenant or prospective tenant of the Property in August 2011. This conversation occurred in the context of processing a city permit for the display of a banner at the Property. Lee “may have conversed with this individual about the issuance of City permits and/or City licenses for the Property.”
George Nichols, a code enforcement officer, recalls having conversations with a representative of a medical marijuana dispensary at the Property. In this conversation, Nichols recalls mentioning that there was a temporary restraining order or preliminary injunction at the Property and that the dispensary should refrain from conducting unlawful operations within the City. Nichols also told a dispensary agent that the police had conducted searches at medical marijuana dispensaries within the City.
Willa Bouwens-Killeen, chief of code enforcement, may “have told someone that there are ‘illegal improvements’ at the Property.” She also “informed a construction contractor that the City would not issue a building permit to perform plumbing repairs at one of the massage establishments located at the Property, because of the ongoing litigation. This individual became frustrated that he could not get a City permit to perform work which was enjoined by the [temporary restraining order].”
Minoo Ashabi, a senior planner, recalls a conversation with an individual about business licenses at the Property. Ashabi “accurately told the applicant the type of license which was being inquired about was presently not being
Opposition to Anti-SLAPP Motion
Dennis D’Alessio submitted his own declaration in opposition to the anti-SLAPP motion. Other than denying he had ever been arrested or convicted of crimes, D’Alessio’s declaration did not include material directly relevant to the allegations of slanderous statements in the cross-complaint (e.g., an assertion of personal knowledge as to the utterance of the alleged slanderous statements). D’Alessio stated at the end of his declaration that he has lost “some 6 prospective tenants” as a result of the slanderous statements alleged in the cross-complaint, which amounts to losses of “tens of thousands of dollars each month.” Dennis D’Alessio also claimed “significant damage to [his] reputation.”
D’Alessio also submitted declarations of individuals with professed knowledge pertaining to the allegations in the cross-complaint. Corina Simeone, who in the spring of 2011 discussed with D’Alessio the idea of leasing space at the Property to operate a tanning salon, visited the business and license division of the City on May 20, 2011. Melynda Shank directed Simeone to Minoo Ashabi. Ashabi “informed me that the City is not issuing any business licenses for anyone at this property location because ‘there is illegal activity going on at that building and we will not process any business licenses for [the Property].’ ” Simeone did not lease space at the Property as a result of this statement. Thus, there is some evidence in the record that Ashabi made statements similar to those alleged in the cross-complaint.
Delores Cinquegrani “visited the offices of the City of Costa Mesa on April 29, 2011 to inquire about obtaining a business license for operation of a retail store [at the Property].” She “spoke with Mel E. Lee [who] informed me that the subject building had recently ‘been raided’ and that the police had been documenting for over a year the various comings and goings at this property, specifically, the massage parlors. He said that ‘there [was] a lot of illegal businesses there, but that’s another story; they have massage parlors and marijuana dispensaries and that’s why the cops raided it. They’ve been investigated.’ ” Lee suggested Cinquegrani look at other buildings for her business.
James Rash inquired into leasing space at the Property in September 2011. Rash visited the City zoning office and was told by an employee named Wendy Shih “that a small auto business such as that which I operate could not be operated at this property and that I would not be able to obtain a business license for” his proposed business, even though (according to Rash) such a business license should have been available. Shih encouraged Rash to find another location for his business and he did so. Shih is not mentioned in the cross-complaint and this allegation is not directly relevant to the tort allegations in the cross-complaint, although D’Alessio might contend it provides circumstantial support for the theory that the employees had actual malice and ill will toward D’Alessio.
Victor Jasniy, a licensed building contractor, agreed with D’Alessio to remodel the Property in 2009. After commencement of the work, a code enforcement inspector named Fidel Gamboa informed Jasniy that “ ‘the City has a lot of problems with Dennis D’Alessio’ and he wanted to inspect the property before any construction was done ‘because Dennis is known throughout the City for doing illegal things.’ ” Gamboa also told Jasniy to “ ‘be careful with Dennis and get your money up front.’ ” Jasniy also perceived “strange looks” and “whispering in the background” whenever he visited the City offices to pursue work for D’Alessio. Like the Rash declaration, the Jasniy declaration is not directly related to the particular allegations of slander/trade libel in the cross-complaint.
Richard D’Alessio (Dennis’s brother and the owner of a food business at the Property) submitted a declaration in which he details alleged abuses of power (and general antipathy toward D’Alessio) by the employees, including Lee and Nichols. Richard D’Alessio’s declaration does not include any information about the allegedly slanderous statements described in the cross-complaint.
Ruling
The court granted the anti-SLAPP motion with regard to cross-defendant Shank and with regard to cross-defendant Ashabi as to the slander and intentional interference with prospective economic advantage causes of action only. The court denied the anti-SLAPP motion with regard to the other cross-defendants (the City, Lee, Nichols, and Bouwens-Killeen). The cross-defendants appealed the order and D’Alessio cross-appealed.
DISCUSSION
An order granting or denying a motion to strike under section 425.16 is appealable. (Id., subd. (i); Code Civ. Proc., § 904.1, subd. (a)(13).) Our review of the court’s order is de novo, and entails an independent review of the entire record. (Ross v. Kish (2006)
D’Alessio’s cross-complaint is not what one might ordinarily think of as a SLAPP (e.g., a corporation suing to stop citizen groups from publicly opposing real estate development). But we note prehminarily that the antiSLAPP law potentially applies to the speech of government employees (Vargas v. City of Salinas (2009)
The anti-SLAPP statute “requires the court to engage in a two-step process. First, the court decides whether the [moving party] 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 determines whether the [responding party] has demonstrated a probability of prevailing on the claim.” (Equilon Enterprises v. Consumer Cause, Inc. (2002)
The merits of D’Alessio’s claims should play no part in the first step of the anti-SLAPP analysis. (Coretronic Corp. v. Cozen O’Connor (2011)
Step One of the Anti-SLAPP Analysis
The first step of the anti-SLAPP analysis requires careful consideration of the statutory language in light of the legal theories of recovery, not a mere cataloging of claims or consideration of general principles of free speech. Courts look “not to First Amendment law but to the statutory definition set forth in section 425.16, subdivision (e)” when determining whether an anti-SLAPP motion may be brought against a cause of action. (Schaffer, supra,
“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 . . . .” (§ 425.16, subd. (b)(1).) As used in the anti-SLAPP statute, “ ‘act in furtherance of a person’s right of petition or free speech ... 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.” (Id., subd. (e), italics added.)
In our view, D’Alessio’s causes of action arise from oral statements “made in connection with an issue under consideration or review by a legislative, executive, or judicial body.” (§425.16, subd. (e)(2).) Our analysis can be broken down into three components: (a) was there an “issue under consideration or review by a legislative, executive, or judicial body”; (b) were the employees’ statements made “in connection with” this issue; and (c) did the
First, was there an issue under consideration or review by a government body? “As used in section 425.16[, subdivision (e)(2)], a matter is ‘under consideration’ if it ‘is one kept “before the mind”, given “attentive thought, reflection, meditation.” [Citation.] A matter under review is one subject to “an inspection, examination.” ’ ” (Maranatha Corrections, LLC v. Department of Corrections & Rehabilitation (2008)
At the time in question in the instant case, both an executive body (the City’s government) and a judicial body (the trial court) were considering and reviewing the issue of whether illegal activity was occurring at the Property and what should occur as a consequence. The City, once injunctive relief issued from the court, formulated a policy of refusing to issue certain licenses at the Property. Both forms of review and consideration of the issue of illegal conduct at the Property qualify under section 425.16, subdivision (e)(2).
The second question is whether the alleged statements of the City’s employees were made “In connection with” the issue under review or consideration. In cases in which the only relevant governmental review or consideration of a private issue is a lawsuit, “a statement is ‘in connection with’ litigation under section 425.16, subdivision (e)(2) if it relates to the substantive issues in the litigation and is directed to persons having some interest in the litigation.” (Neville v. Chudacoff (2008)
All of the allegedly slanderous communications referenced in the cross-complaint are based on employees in the planning department and code enforcement department communicating' with parties interested in obtaining licenses at the Property. These parties seeking licenses at the Property were allegedly told they could not obtain licenses because of illegal activity at the Property. They were also allegedly told other details (some clearly inaccurate, such as Dennis D’Alessio being convicted of crimes). For purposes of this inquiry, it is irrelevant whether the alleged statements accurately described the litigation and concomitant executive body review of alleged criminal activity at the Property. It would unduly conflate the merits of D’Alessio’s claim with the first step of the anti-SLAPP inquiry were we to distinguish between alleged statements accurately describing ongoing litigation or executive policy consideration and other less accurate statements. Regardless of whether these communications specifically referenced the litigation or accurately described the status of the litigation, each communication is connected to the issue of alleged-illegal activities at the Property and the executive body policy consequences of this issue for individuals seeking business licenses at the Property. (See Maranatha, supra, 158 Cal.App.4th at pp. 1081-1086 [written and oral statements about alleged misconduct by private firm were connected with executive branch consideration and review of an issue].)
Third and finally, did D’Alessio’s causes of action arise from the alleged oral statements? The “ ‘arising from’ ” statutory requirement means “the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech.” (City of Cotati v. Cashman (2002)
In sum, D’Alessio’s cross-complaint is subject to an anti-SLAPP motion. We turn to the second step of the anti-SLAPP analysis to evaluate D’Alessio’s probability of prevailing on the slander, trade libel, and intentional interference causes of action.
Step Two of the Anti-SLAPP Analysis: Probability of Prevailing
“[Although by its terms section 425.16, subdivision (b)(1) calls upon a court to determine whether ‘the plaintiff has established that there is a probability that the plaintiff will prevail on the claim’ (italics added), past cases interpreting this provision establish that the Legislature did not intend that a court, in ruling on a motion to strike under this statute, would weigh conflicting evidence to determine whether it is more probable than not that plaintiff will prevail on the claim, but rather intended to establish a summary-judgment-like procedure available at an early stage of litigation that poses a potential chilling effect on speech-related activities.” (Taus v. Loftus (2007)
“Slander is a form of defamation (Civ. Code, § 44), consisting of a false and unprivileged oral publication (Civ. Code, § 46). To establish a prima facie case for slander, a plaintiff must demonstrate an oral publication to third persons of specified false matter that has a natural tendency to injure or that
Interference with prospective economic advantage consists of “(1) an economic relationship between the plaintiff and a third party, with the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) an intentional • act by the defendant, designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the defendant’s wrongful act, including an intentional act by the defendant that is designed to disrupt the relationship between the plaintiff and a third party.” (Edwards v. Arthur Andersen LLP (2008)
D’Alessio provided no evidence to support allegations in the cross-complaint that Nichols, Shank, or Bouwens-Killeen made the statements alleged in the cross-complaint. Nor does D’Alessio even argue that the statements admitted to by Nichols and Bouwens-Killeen in their declarations were false or otherwise wrongful. In the second step of the anti-SLAPP analysis, “the plaintiff must show . . . there is admissible evidence that, if credited, would be sufficient to sustain a favorable judgment.” (McGarry v. University of San Diego (2007)
The question, then, is whether Ashabi’s and Lee’s alleged statements are actionable against the City, Ashabi, and/or Lee. The tort liability of public entities like the City
Extant case law supports the general proposition that a public entity and its employees may (in appropriate circumstances) be held liable for slander. (See, e.g., Sanborn v. Chronicle Pub. Co. (1976)
It is uncontested for purposes of this appeal that Ashabi and Lee were acting within the scope of their employment when they allegedly uttered the statements at issue. The question before us is whether various defenses, privileges, and immunities preclude liability for Ashabi, Lee, and/or the City under the circumstances of this case.
1. D’Alessio Failed to Prove Ashabi’s Statement Was False
Cross-defendants first contend Ashabi’s statement and most of Lee’s statements were true and therefore not actionable. “In defamation actions generally, factual truth is a defense which it is the defendant’s burden to prove. [][] In a defamation action ... by a private person suing over statements of public concern, however, the First Amendment places the burden of proving falsity on the plaintiff.” (Eisenberg v. Alameda Newspapers, Inc. (1999)
If the truth of the employees’ statements were an affirmative defense to D’Alessio’s causes of action, the cross-defendants’ argument on appeal would have no merit. The cross-defendants point to the unverified complaint and the
But “[t]he First Amendment trumps the common law presumption of falsity in defamation cases involving private-figure plaintiffs when the allegedly defamatory statements pertain to a matter of public interest.” (Nizam-Aldine, supra,
The Nizam-Aldine trial court committed reversible error by instructing the jury that the defendants had the burden of proving the truth of the employees’ statements. (Nizam-Aldine, supra, 47 Cal.App.4th at pp. 372, 379-381.) “All five statements at issue . . . were responses by . . . employees to direct requests for information about a matter the City [of Oakland] was involved in by virtue of its exercise of a governmental function. Further, the speakers did not just so happen to be employed by the City [of Oakland]. [Oakland] officials were sought out and asked by members of the public to explain and/or justify why the City [of Oakland] exercised its discretionary power to stop work at the private construction sites. These inquiries and the . . . responses were ‘discussion[s] of governmental affairs’; the freedom of such discussion is protected by the First Amendment. [Citation.] Indeed, all of the statements at issue in this case were not only made by government officials, but related directly to a matter with which the speakers had become involved qua representatives of local government.” (Id. at pp. 376-377, fn. omitted.) A contrary result would vitiate government’s role of informing the public about important matters. (Id. at pp. 377-379.)
Here, the employees’ statements were made on a matter of public interest because they came in the context of potential tenants and contractors requesting licenses for activity at the Property. In the course of explaining why licenses could not issue, Ashabi and Lee allegedly made false statements about the Property and (in Lee’s case) D’Alessio. Alleged illegal activity at
D’Alessio did not meet his burden of proving a probability of prevailing with regard to Ashabi’s alleged statement. (See Integrated Healthcare Holdings, Inc. v. Fitzgibbons (2006)
Lee’s alleged statement about Dennis D’Alessio’s criminal convictions is different in kind. Dennis D’Alessio attested he “has never been arrested or convicted of anything,” a fact conceded by cross-defendants on appeal. Thus, D’Alessio submitted sufficient evidence to demonstrate the falsity of Lee’s key alleged statement for purposes of the anti-SLAPP motion.
The City and Lee next contend the litigation privilege precludes liability for Lee’s statements. “The [litigation] privilege in [Civil Code] section 47 is ‘relevant to the second step in the anti-SLAPP analysis in that it may present a substantive defense plaintiff must overcome to demonstrate a probability of prevailing.’ ” (Rohde v. Wolf (2007)
“ ‘The litigation privilege, codified at Civil Code section 47, subdivision (b), provides that a “publication or broadcast” made as part of a “judicial proceeding” is privileged. This privilege is absolute in nature, applying “to all publications, irrespective of their maliciousness.” [Citation.] “The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that [has] some connection or logical relation to the action.” [Citation.] The privilege “is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards.” [Citation.] [f] “The principal purpose of [the litigation privilege] is to afford litigants and witnesses [citation] the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions.” ’ ” (Rental Housing Assn. of Northern Alameda County v. City of Oakland (2009)
By way of relevant summary, Lee, a senior planner with the City, allegedly told an individual interested in a business license to operate at the Property that (1) Dennis D’Alessio had been convicted of prostitution and drug dealing and (2) the Property would be shut down because of illegal activity. This case does not involve statements made in a judicial or other official proceeding. Nor does it involve statements made to initiate an investigation or official action. Nor does it involve attorneys or parties describing the litigation to other parties or attorneys involved in the litigation.
Cross-defendants contend, however, that Lee’s statements were connected to the litigation because they refer (however inaccurately) to the issue of illegal activity at the Property and the litigation goals of the City in the underlying nuisance action. Lee’s statements were arguably made in tangential pursuit of the goals of the litigation (eliminating the nuisance at the Property).
Cross-defendants failed to establish as a matter of law that the litigation privilege applied to Lee’s statements. Cross-defendants did not establish in their anti-SLAPP motion or appellate briefs that Lee’s communications functioned to advance the City’s nuisance action. Nor did cross-defendants cite any cases applying the litigation privilege in comparable circumstances.
3. Cross-defendants Failed to Establish Prosecutorial Immunity
The City and Lee also claim prosecutorial immunity. “A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.” (Gov. Code, § 821.6.) Although this immunity should be interpreted broadly for investigatory and prosecutorial conduct (Gillan v. City of San Marino (2007)
4. Cross-defendants Failed to Establish Immunity for Misrepresentations
Finally, the City and Lee cite governmental immunities for “misrepresentations.” “A public entity is not liable for an injury caused by misrepresentation by an employee of the public entity, whether or not such misrepresentation be negligent or intentional.” (Gov. Code, § 818.8.) “A public employee acting in the scope of his employment is not liable for an injury caused by his misrepresentation, whether or not such misrepresentation be negligent or intentional, unless he is guilty of actual fraud, corruption or actual malice.” (Gov. Code, § 822.2.) “Government Code section 818.8 provides an immunity to public entities for misrepresentations and section 822.2
The word “misrepresentation” under Government Code sections 818.8 and 822.2 “potentially lends itself to extremely expansive and elusive interpretations.” (Johnson v. State of California (1968)
Here, the gist of D’Alessio’s cross-complaint is that city employees provided inaccurate information to third parties and, in doing so, harmed D’Alessio. It is undisputed that this case concerns the issuance of permits or licenses. It is also true this case involves alleged misstatements of fact that purportedly harmed D’Alessio’s financial interests. But this case does not involve “misrepresentations” as defined by our Supreme Court. Tort causes of action based on reputational harm (slander, trade libel, and intentional interference based on false statements to third parties) are not included within the “deceit” rubric identified by our Supreme Court when it interpreted Government Code sections 818.8 and 822.2. (ECO Resources, Inc. v. City of Rio Vista, supra, 2006 U.S.Dist. Lexis 52373; ECO Resources, Inc. v. City of Rio Vista (E.D.Cal., Apr. 12, 2006, No. 2:05-cv-2556-GEB-DAD) 2006 U.S.Dist. Lexis 100339, p. *7 [“The torts of trade libel and defamation are not encompassed by [Government Code] section 818.8 because they involve reputational harm for which the legislature did not intend to grant immunity.”].) We therefore reject cross-defendants’ argument.
In sum, the evidence presented by cross-defendants in their antiSLAPP motion does not establish the applicability as a matter of law of any of the defenses, privileges, and immunities put forth so as to result in dismissal of the cross-complaint with regard to Lee and the City.
The court’s order is affirmed in part and reversed in part. On remand, the court is instructed to grant the City’s anti-SLAPP motion in its entirety as to cross-defendants George Nichols, Willa Bouwens-Killeen, and Minoo Ashabi.
The court correctly granted the anti-SLAPP motion in its entirety as to cross-defendant Melynda Shank. The court also correctly denied the antiSLAPP motion as to cross-defendants Mel E. Lee and the City. In the interests of justice, the parties shall bear their own costs on appeal.
Fybel, Acting P. J., and Thompson, J., concurred.
A petition for a rehearing was denied April 4, 2013, and the petition of appellant City of Costa Mesa for review by the Supreme Court was denied May 22, 2013, S210098.
Notes
The cross-complaint mistakenly referred to Willa Bouwens-Killeen as “Bouwens-Lilleen.” We shall utilize her correct name in this opinion.
According to a declaration submitted by an attorney for the City, a temporary restraining order was issued on May 6, 2011, enjoining use of the Property by various businesses and enjoining “the operation of all massage establishments at the Property.” This order is not in the record. Nor are the applications for injunctive relief and supporting evidence presumably filed by the City.
The cross-complaint underlines the alleged statements for emphasis, but we omit the underlining in this opinion for the sake of readability.
“As the statute’s plain language indicates, if the statement at issue falls within the ambit of [section 425.16,] subdivision (e)(1) or (2), defendants need not separately demonstrate that [the statements at issue] concerned an issue of public significance.” (Du Charme v. International Brotherhood of Electrical Workers (2003)
The City and the employees phrase their argument in terms of “connection to the litigation” rather than connection to the issue under consideration by executive and judicial bodies. But the consideration of the issue by the two governmental bodies is inextricably intertwined because the executive body opted to pursue a lawsuit in a judicial body to address the issue.
This result was only avoided at the trial court with regard to Nichols and Bouwens-Killeen because the court found they had not met their threshold burden of showing that the causes of action against them were subject to an anti-SLAPP motion.
The cross-complaint alleges that Ashabi referencéd litigation concerning such illegal activity, whereas the declaration does not mention Ashabi referring to the litigation. This difference in phrasing does not affect our analysis.
“ ‘Public entity’ includes . . . a . . . city . . . and any other political subdivision or public corporation in the State.” (Gov. Code, § 811.2.)
The court found that D’Alessio had not established a probability of prevailing as to Ashabi with regard to the slander and intentional interference causes of action because of a lack of evidence presented that (1) Ashabi’s statement reflected on D’Alessio (rather than simply reflecting something about the Property) and (2) Ashabi was aware of an existing relationship between D’Alessio and attesting witness, Simeone (the prospective tenant at the Property). Because we conclude below that none of the causes of action are viable against Ashabi for another reason, we need not address the court’s reasoning.
We address only those defenses, immunities, and privileges raised by cross-defendants in their anti-SLAPP motion and appellate briefs.
Of course, some of what Lee said might well be true and therefore nonactionable, but the key allegation against Lee pertains to a statement that is clearly untrue. Dennis D’Alessio met his anti-SLAPP burden with regard to the elements of his three causes of action against Lee and the City (vicariously liable for Lee’s statements).