Opinion
I. Statement of the Case
Sandra Cross (Cross) leased a house to Stephen and Laura Cooper. As the lease was about to expire, Cross put the house up for sale and entered a contract of sale with prospective buyers. After the prospective buyers backed out, Cross sued the Coopers for interfering with the sale and causing it to fail. In her complaint, Cross asserted several claims based, in part, on allegations that the Coopers disclosed, or threatened to disclose, information that a registered sex offender lived nearby. In response to the lawsuit, the Coopers filed an anti-SLAPP motion under Code of Civil Procedure section 425.16 to
We conclude that the trial court erred in denying the motion and remand the matter for further proceedings.
II. The Pleadings and the Anti-SLAPP Motion
A. The Complaint
In her complaint, Cross asserted causes of action for breach of a residential lease agreement, breach of the implied covenant of good faith in the lease agreement, inducing prospective buyers to breach their purchase contract with Cross, intentional interference with that purchase contract, and intentional and negligent interference with prospective economic relations.
In support of these claims, Cross alleged that the Coopers leased a house from her from September 5, 2006, to August 31, 2007. Under the lease, Cross was permitted to show the house to prospective buyers. On June 26, 2007, Cross told the Coopers she was selling the house. On July 5, the Coopers told Cross not to put a “For Sale” sign up or show the house to prospective buyers. Cross alleged that the Coopers threatened to remove any sign, if she
Cross further alleged that in August 2007 she had a contract with a prospective buyer, and the Coopers knew about it. Cross declined to waive the Coopers’ August rent, and, in retaliation, the Coopers informed the buyer’s agent that a sex offender lived close by. The proposed sale did not go through.
B. The Anti-SLAPP Motion
In their motion, the Coopers sought dismissal of all causes of action except the claim that they breached the lease agreement. In a declaration, Stephen Cooper (Cooper), a real estate agent, stated that while leasing Cross’s house, they learned that a registered sex offender lived across the street. In June 2007, after seeing police officers “raid[]” the offender’s • house, Cooper expressed concern about it to Cross. Cross explained that it was just a home inspection. Later in June, Cross said she was selling the house but did not intend to disclose that the offender lived nearby because she thought it would make the house unsellable. In August, Cooper spoke to a prospective buyer’s agent, who informed him that the buyer might have children. Because of the risk to children posed by a registered offender living nearby, Cooper “discussed” Megan’s Law and the duty of a real property seller to disclose information about real property and then told the agent that “a registered offender lived immediately across the street.”
In support of their motion, the Coopers argued, in essence, that except for breach of the lease agreement, Cross’s claims were based on disclosing, or threatening to disclose, the location of the offender; that disclosure or the threat to disclose constituted an act in furtherance of their First Amendment right of free speech because it concerned a matter of public interest; and Cross could not show a probability of success on her claims.
In opposition to the motion, Cross submitted a copy of the lease agreement, under which the tenancy expired on August 31, 2007; the Coopers were required to make the house available for Cross to show prospective buyers on
In her declaration, Cross stated that long before leasing to the Coopers, she lived in the house and knew that the offender lived nearby. She did not consider him a threat because his last known offense was in 1979, he had been living in the area since 1993, and he had had the same job for 14 years. After leasing her house, she remained in the area for a while and stayed in contact with her neighbors. At no time was she ever aware of any neighborhood controversy about the offender.
Cross further declared that in June 2007, she informed the Coopers that she was putting her house up for sale. Toward the end of June, she advised the Coopers that she wanted to have it sold by September 1 “for the school year.” In a series of e-mails between July 5 and 12, copies of which Cross attached to her declaration, Cooper initially informed Cross that the house would not be available to show until after they vacated the property on August 31 and told her not to put up a “For Sale” sign. In his next e-mail, Cooper said, among other things, that if Cross provided 48 hours’ notice, he would maintain the house in show condition and allow her access on Tuesdays from 3:00 p.m. to 5:00 p.m. “in exchange for August rent free and confirmation of our $2,500 deposit being returned on August 31 after a walk through.” In another e-mail a few hours later, Cooper reiterated that he would cooperate with efforts to show the house on Tuesdays but “cannot and will not guarantee our cooperation on any other day or time and I make no promises that I will not give my opinion, which is my right, to buyers regarding your price, the sherrif s [íz'c] raid on the sexual predators next door three weeks ago or anything else I feel I have an opinion [szc].” A few days later, Cooper sent two e-mails in which he promised “complete cooperation on Tuesday afternoons 3:00-5:00 pm to show the property to as many buyers as you wish with full access to the property.”
In her declaration, Cross stated that she believed Cooper had made a “threat, designed to cause me fear, that prospective buyers would be told about the location of specific registered sex offenders” unless she provided the Coopers with free rent for a month or increased their property rights.
Cross also submitted the declaration of Mark Thomason, her real estate agent. He stated that he tried to, but did not, post a “For Sale” sign on the property because someone there threatened to remove it if he did. After
Shortly after the contract was signed, Michael Majchrowicz, the Chans’ real estate agent, told Thomason that Cooper had informed him that a registered sex offender lived across the street but had asked Majchrowicz to say that he learned the information from an anonymous person. In response, Thomason referred Majchrowicz to the Megan’s Law disclosure in the Chans’ contract of sale. Thereafter, the Chans refused to sign a disclosure statement about the offender and declined to buy the property.
Cross also submitted declarations from six current or former residents of the area, some of whom had children. All stated that they knew about the registered offender but felt he neither posed a risk nor made the area less desirable or valuable. None considered his presence to be a topic of controversy or discussion in the area.
In opposition to the motion, Cross claimed that the Coopers’ threat to disclose and later disclosure about the offender’s location was illegal and thus not constitutionally protected conduct. Specifically, she argued that the threat to disclose unless she waived rent constituted attempted extortion. Cross further argued that the actual disclosure was an unlawful use of that information. Cross also claimed that she made a prima facie showing that she was likely to succeed on the merits of her claims.
The Coopers argued that Cross could not establish that disclosure or threatened disclosure of information was illegal as a matter of law and, therefore, outside constitutional protection. They also reiterated arguments that the disclosure involved an issue of public interest and that Cross had failed to show a probability of success on the merits of her claims.
C. The Trial Court’s Ruling
In denying the motion, the court found that the cause of action for breach of the implied covenant of good faith contained allegations that, in essence, accused Cooper of attempting to extort one month’s free rent from Cross by disclosing the location of the offender. Since attempted extortion is a crime (Pen. Code, § 524), the court concluded that the threat did not qualify for anti-SLAPP protection. Accordingly, the court declined to dismiss that cause of action.
Concerning the remaining causes of action, all of which were based on actual disclosure, the court, citing Du Charme v. International Brotherhood of Electrical Workers (2003)
Given its findings, the court declined to rule on the Coopers’ evidentiary objections or determine whether Cross had shown a probability of success on the merits of her claims.
III. Anti-SLAPP Motion Procedure
Section 425.16 is called the anti-SLAPP statute because it allows a defendant to gain early dismissal of causes of action that are designed primarily to chill the exercise of First Amendment rights. (Siam v. Kizilbash (2005)
Acts “in furtherance of’ these rights include “(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.” (§ 425.16, subd. (e).)
In ruling on an anti-SLAPP motion, the trial court engages in a two-step process. “First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains were taken ‘in furtherance of the [defendant]’s right of petition or free speech under the United States or California Constitution in connection with a public issue,’ as defined in the statute. [Citation.] If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Equilon Enterprises v. Consumer Cause, Inc. (2002)
IV. Discussion
Cooper contends that the trial court erroneously concluded that he had not shown that Cross’s claims were based on protected conduct. We agree.
A. Issue of Public Interest
Cooper notes that all of the causes of action were based, at least in part, on allegations that Cooper threatened to disclose or disclosed that a sex offender lived nearby. In his declaration, Cooper conceded that he told a real estate agent about the offender. As noted, he declared, “Because of the risk presented to children by the close proximity of a registered sex offender to the property, I discussed Megan’s Law and the seller’s duty of disclosure attendant thereto, and stated that a registered sex offender lived immediately across the street.”
Cooper claims that this discussion and disclosure (and presumably stating an intention to disclose) qualified for anti-SLAPP protection under section 425.16, subdivision (e)(4), which protects 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.” (Italics added.) Cooper argues that his conduct was connected with issues of public interest, namely, child molestation, a real property owner’s duty to disclose actual knowledge about registered sex offenders, and the location of a particular offender.
Section 425.16 does not define “public interest” or “public issue.” Those terms are inherently amorphous and thus do not lend themselves to a precise, all-encompassing definition. (See Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003)
Nevertheless, courts have discussed how to decide whether a statement concerns a matter of public interest. In Nygård, Inc. v. Uusi-Kerttula (2008)
Accordingly, courts have broadly construed “ ‘public interest’ ” “to include not only governmental matters, but also private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a governmental entity. [Citations.]” (Damon v. Ocean Hills Journalism Club (2000)
In Rivero, supra,
In Weinberg, supra,
With this background in mind, we turn to whether Cooper’s disclosure about the registered offender who lived nearby constituted protected speech in connection with an issue of public interest. (§ 425.16, subd. (e)(4).) We find more specific guidance in three cases.
In M.G., supra,
In Terry, supra,
M.G. and Terry demonstrate the obvious: preventing child sexual abuse and protecting children from sexual predators are issues of widespread public interest. Thus, insofar as Cooper’s disclosure served those interests by alerting prospective buyers of the potential risk to children posed by a registered sex offender who lived nearby, his conduct involved a private communication directly related to an issue of considerable interest to the general public and qualifies for anti-SLAPP protection.
Closely and directly related to the general issues of child molestation and the protection of children from sexual predators are issues concerning registered sex offenders. In this regard, we find the recent case of Mendoza v. ADP Screening and Selection Services, Inc. (2010)
The legislative findings referred to in Mendoza were outlined in Fredenburg, supra,
The Legislature reiterated and reaffirmed these findings when it enacted the Sex Offender Punishment Control and Containment Act of 2006 (Pen. Code, § 290.03), where it also stated, “The Legislature finds and declares that a comprehensive system of risk assessment, supervision, monitoring and containment for registered sex offenders residing in California communities is necessary to enhance public safety and reduce the risk of recidivism posed by these offenders.” (Pen. Code, § 290.03, subd. (a).)
We agree with the conclusion in Mendoza. The statements of intent and the legislation noted above reflect heightened concern about the potential dangers posed by convicted sex offenders and strong and widespread public interest in knowing the location of registered sex offenders.
We further note that under Civil Code section 2079.10a, residential leases and rental agreements and contracts for the sale of residential units must contain a provision notice that gives prospective renters, lessees, and buyers notice concerning the California’s sex offender databases and the types of information contained in them, including the specific location of offenders.
Here, Cooper’s conversation with the agent mirrors the disclosure of information in Mendoza and, as discussed above, was closely and directly related to specific issues of great interest to the general public.
Given M.G., Terry, and Mendoza, the laws concerning the collection and dissemination of information about registered offenders, and the Legislature’s expressions of intent in enacting those laws, we have no difficulty concluding that Cooper made a prima facie showing that most of Cross’s causes of action arise from protected activity. In other words, Cooper satisfied his burden to show that his disclosure and expression of intent to disclose were taken in furtherance of his right of free speech in connection with an issue of “widespread, public interest.” (Rivero, supra,
We acknowledge that “ ‘[t]he fact that “a broad and amorphous public interest” can be connected to a specific dispute is not sufficient to meet the statutory requirements’ of the anti-SLAPP statute.” (World Financial Group, supra,
Citing Du Charme, supra,
In Du Charme, supra,
In Damon, supra,
According to the Du Charme court, none of these cases involved issues of widespread public interest; rather they involved issues of interest to limited,
The court then turned its observation into a rule, holding that “to satisfy the public issue/issue of public interest requirement . . . , in cases where the issue is not of interest to the public at large, but rather to a limited, but definable portion of the public (a private group, organization, or community), the constitutionally protected activity must, at a minimum, occur in the context of an ongoing controversy, dispute or discussion, such that it warrants protection by a statute that embodies the public policy of encouraging participation in matters of public significance.” (Du Charme, supra,
Applying its newly minted rule, the Du Charme court concluded that the union’s Web site posting did not qualify for protection because it was “unconnected to any discussion, debate or controversy”—the supervisor had been terminated months before, his termination was no longer an issue, and union members were not being asked to take a position on the matter. (Du Charme, supra,
Even if we viewed Cooper’s conversation as a private communication of limited interest to only those living in or moving into the neighborhood, and thus subject to the Du Charme rule, we would still conclude that it qualifies for anti-SLAPP protection.
The Du Charme rule applies to statements made “in the context of an ongoing controversy, dispute or discussion.” (Du Charme, supra,
With this in mind, and assuming that there is, in fact, a person who is required to register as a sex offender living across the street, we note that that offender has an ongoing, annual, and lifetime duty to register his or her residence with authorities. (Pen. Code, § 290, subd. (a).) That information is included in a database, which is updated when necessary and published on the ML Web site. (See Pen. Code, § 290.46.) The purpose of that Web site is to provide current and continuous notice of and access to the fact that this registered offender is living in that neighborhood so that its residents, visitors, and potential residents can take whatever measures they deem necessary to maintain vigilance and protect themselves and their children. We find that the continuous access to and dissemination of information about the presence of a registered offender in the area represents ongoing “discussion,” albeit a cyber discussion, between local authorities and local residents about that particular offender. In our view, this discussion passes muster under the Du Charme rule. Indeed, we believe that Cooper’s conversation occurred in the context of “ongoing controversy, dispute or discussion” just as much as the statements during elections in Macias and Damon. Moreover, Cooper’s conversation involved issues that were no less important than the statements in those cases. Thus, it too ought to qualify for anti-SLAPP protection to encourage participation in matters of public significance and safeguard the valid exercise of First Amendment rights.
B. Unlawful Activity
Cross claims that Cooper’s threat to disclose and actual disclosure are not protected conduct because they constituted illegal conduct, which is not entitled to anti-SLAPP protection. In particular, Cross argues that the threat amounted to attempted extortion; and the disclosure was an unauthorized use of information on the ML Web site.
1. Applicable Principles
Not all speech or acts performed in furtherance of First Amendment rights qualify for anti-SLAPP protection; only valid acts qualify. Therefore,
For example, in Flatley, supra,
As another example of unprotected illegal conduct, the Flatley court cited Paul for Council v. Hanyecz (2001)
2. Extortion
Although the complaint did not expressly assert a cause of action for attempted extortion, Cross argued that the allegations in her claim for breach of the covenant of good faith implicitly did so. Specifically, the complaint alleged, in pertinent part, that the Coopers unfairly interfered with her right to the benefits of the lease by telling her she could not put up a “For Sale” sign or show the property and threatening to remove any sign and threatening to make “negative comments regarding THE PROPERTY to any prospective purchasers including things [the Coopers] claimed would make the property impossible to sell.” Cross further alleged that that the Coopers “demanded conditions for allowing THE PROPERTY to be shown, which included [their] being allowed to occupy [it] during August, 2007 rent free. If plaintiff would not agree to said conditions, [the Coopers] threatened to state negative comments to actual or prospective purchasers regarding THE PROPERTY. Said comments would include describing the proximity of convicted sex offenders. If plaintiff would agree to said conditions, no such comments would be made.”
In opposition to the anti-SLAPP motion, Cross stated the factual basis of her allegations. She submitted a series of e-mails that Cooper sent her. Although he initially said the house could not be shown until they vacated it, he later said he would maintain the house in show condition and allow it to
As noted, the trial court found that the complaint alleged that the Coopers “attempted to extort one month’s free rent from [Cross].” However, the evidence before the trial court did not conclusively establish attempted extortion as a matter of law.
Cooper did not concede that the e-mails to Cross amounted to attempted criminal extortion. On the contrary, he contested Cross’s claim and the purported factual basis for it, arguing that the e-mails did not constitute a threat of any sort; there was no evidence they intended to extort anything from Cross; and, because the location of the registered offender was public information, its threatened disclosure could not constitute attempted extortion based on the threat to disclose a secret.
Not only did Cooper not concede criminal conduct, but we do not find this to be one of those rare cases in which there is uncontroverted and uncontested evidence that establishes the crime as a matter of law. (E.g., Flatley, supra,
Penal Code section 518 defines extortion and section 524 proscribes attempted extortion.
Clearly, the e-mails that Cooper sent to Cross did not threaten to physically harm anyone or any property, accuse anyone of a crime, or expose or impute to Cross some deformity or disgrace. Moreover, they did not, as a matter of law, explicitly or implicitly threaten to disclose the location of the registered offender unless Cross complied with his demands. And neither they nor Cross’s declaration conclusively establish that the e-mails were adapted to convey that message. The fact that Cross inferred as much and believed they conveyed an extortionate message does not establish that message or Cooper’s intent to convey it as a matter of law.
Furthermore, the record does not establish as a matter of law that the location of the registered offender was the sort of “secret” which the threatened disclosure would constitute extortion within the meaning of Penal Code section 519.
“The ‘secret’ referred to in the statute is a matter ‘unknown to the general public, or to some particular part thereof which might be interested in obtaining knowledge of the secret; the secret must concern some matter of fact, relating to things past, present or future; the secret must affect the threatened person in some way so far unfavorable to the reputation or to some other interest of the threatened person, that threatened exposure thereof would be likely to induce him through fear to pay out money or property for the purpose of avoiding the exposure.’ [Citation.] Whether a threatened exposure would have this effect on the victim is a factual question and depends on the nature of the threat and the susceptibility of the victim. [Citations.]” (Philippine Export & Foreign Loan Guarantee Corp. v. Chuidian (1990)
Here, information that the offender lived in the neighborhood was publicly available on the ML Web site to anyone who was interested in knowing about it, and Cross’s own pleadings and declarations established that she and some
Finally, that Cross may have believed the information to be secret at least to part of the population or that she wanted to keep it a secret if possible does not conclusively establish that it was a secret for the purpose of attempted extortion. Rather, whether the location of the offender was a secret represented a contested question of fact.
Cross’s reliance on Cohen, supra,
Cohen is distinguishable and does not suggest that here Cross satisfied her burden to conclusively establish that Cooper committed attempted extortion. On the contrary, the record establishes that most, if not all, elements of such an offense are contested issues of fact.
3. Unlawful Use of Information
Most of Cross’s causes of action are based on Cooper’s disclosure to the agent that the registered offender lived across the street, a disclosure that Cooper concedes he made. In support of her argument that the disclosure was
Section 290.46 requires the Department of Justice to maintain a Web site that includes information on persons convicted of specified sex offenses, such as the offender’s name, address, aliases, photograph, physical description, date of birth, criminal history and other information the department deems relevant. (§ 290.46, subds. (a)(1), (b)(1), (c)(1), (d)(1).) Section 290.46 further provides, “(f)(1) A person is authorized to use information disclosed pursuant to this section only to protect a person at risk. [][] (2) Except as authorized under paragraph (1) or any other provision of law, use of any information that is disclosed pursuant to this section for purposes relating to any of the following is prohibited: [CJ[] (A) Health insurance. [][] (B) Insurance. [f] (C) Loans. [][] (D) Credit. [|] (E) Employment. [][] (F) Education, scholarships, or fellowships, [f] (G) Housing or accommodations, ffl (H) Benefits, privileges, or services provided by any business establishment. [][]... [][] (4)(A) Any use of information disclosed pursuant to this section for purposes other than those provided by paragraph (1) or in violation of paragraph (2) shall make the user liable for the actual damages, and any amount that may be determined by a jury or a court sitting without a jury, not exceeding three times the amount of actual damage, and not less than two hundred fifty dollars ($250), and attorney’s fees, exemplary damages, or a civil penalty not exceeding twenty-five thousand dollars ($25,000).” (Italics added.)
Penal Code section 290.46, subdivision (j) provides: “(1) Any person who uses information disclosed pursuant to this section to commit a misdemeanor shall be subject to, in addition to any other penalty or fine imposed, a fine of not less than ten thousand dollars ($10,000) and not more than fifty thousand dollars ($50,000). [f] (2) Any person who uses information disclosed pursuant to this section to commit a felony shall be punished, in addition and consecutive to any other punishment, by a five-year term of imprisonment in the state prison.”
Cross claims that Cooper’s disclosure of the offender’s location constituted an unauthorized use of information because there is no evidence that it was disclosed “to protect a person at risk.” (Pen. Code, § 290.46, subd. (0(1).) She argues that neither she nor the Coopers could identify a specific person
Initially, we note that in Mendoza, supra,
The court concluded that in Flatley, supra,
The court further noted that although Penal Code section 290.46, subdivision (j) increases the punishment for a misdemeanor or felony if the perpetrator uses information to commit the offense, that section does not define a substantive crime but is essentially only an enhancement statute. Thus, even a violation of that subdivision does not constitute “illegal”—i.e., criminal—conduct under Flatley for purposes of anti-SLAPP analysis. (Mendoza, supra,
Thus, here, even if Cross conclusively demonstrated that Cooper’s disclosure was unauthorized as a matter of law, under Mendoza, that unauthorized, but noncriminal, conduct would not preclude anti-SLAPP protection. Here, however, Cross fails to conclusively demonstrate that Cooper’s disclosure was unauthorized as a matter of law.
Penal Code section 290.46, subdivision (l) allows the use of information on the ML Web site “to protect a person at risk,” that is, for the purpose of protecting a person at risk, and prohibits its use for any other
Here, Cooper’s intent constitutes a contested issue of fact. He declared that he disclosed the offender’s location because the agent of the prospective buyers said that the buyers might have children and because of the risk to children posed by a nearby registered offender. Cross does not conclusively refute Cooper’s declaration. She merely argues that the evidence supports a finding that Cooper had an ulterior motive and purpose in disclosing the information: to make the house unsellable.
We also reject Cross’s claim that in the absence of a specific, identifiable person who is in fact at risk, the disclosure of information, even if ostensibly for the purpose of protection, is nevertheless unauthorized. We doubt the Legislature intended such a narrow and cramped interpretation because the purpose of the registration law and the blanket dissemination of registration information through the ML Web site is to facilitate and enhance the protection and safety of those living in proximity to registered offenders. Making the existence of a specific, identifiable person at risk a prerequisite to authorized use of information limits, rather than promotes, the purpose of the statute and Web site. Moreover, such a requirement would not necessarily prevent the harassment of registered offenders from misuse of information for the unauthorized purposes enumerated in the statute. In our view, the statute authorizes disclosure not only when one provides the information to a mother who is standing in front of her house with a small child in her arms but also where one provides information with a reasonable and good faith belief that doing so will help protect another person and intending that the information do so.
V. Conclusion
To summarize our analysis and discussion, we conclude that Cooper satisfied the initial burden to show that the challenged causes of action in Cross’s complaint arose from acts in furtherance of Cooper’s right of free speech in connection with an issue of public interest. (§ 425.16, subds. (b)(1), (e)(4); Mendoza, supra,
Because the court concluded that the Coopers had not met their initial burden, it did not reach the question of whether Cross could show a probability of success on any of the challenged causes of action. Nor did the court rule on the Coopers’ numerous objections to the evidence Cross submitted to satisfy her burden.
Under identical circumstances, the court in Hall, supra,
VI. Disposition
The order denying the anti-SLAPP motion is reversed. The matter is remanded to the trial court for further proceedings on the motion, including ruling on evidentiary objections and determining whether Cross has met her burden to show a probability of success on the merits of the challenged causes of action.
Premo, J., and Elia, J., concurred.
A petition for a rehearing was denied August 4, 2011, and the opinion was modified to read as printed above. Respondent’s petition for review by the Supreme Court was denied October 12, 2011, S195859.
Notes
“SLAPP is an acronym for strategic lawsuit against public participation.” (Balzaga v. Fox News Network, LLC (2009)
All further unspecified statutory references are to the Code of Civil Procedure.
Prior to this decision, codefendant and coappellant Laura Cooper filed for bankruptcy protection under chapter 7 of the Bankruptcy Code (11 U.S.C. §§ 701-784), which triggered a stay of judicial proceedings against her. (See 11 U.S.C. § 362(a) [automatic stay of judicial proceedings against debtor]; Shaoxing County Huayue Import & Export v. Bhaumik (2011)
We asked the parties to show cause whether there was any legal authority or reason that precluded this court from proceeding with the appeal against nondebtor, codefendant and coappellant Stephen Cooper. Having reviewed their responses, we find no binding legal authority or persuasive reason to delay proceedings in this appeal concerning Stephen Cooper.
The previous stay concerning debtor, codefendant and coappellant Laura Cooper shall remain in effect.
“California's Megan's Law (Penal Code §§ 290.4, 290.45) is a scheme of detailed provisions for the collection and limited disclosure of information regarding sex offenders who are required to register by Penal Code section 290.” (Fredenburg v. City of Fremont (2004)
In an e-mail to Cross, Cooper stated that he and his wife had a newborn infant, and because he had not yet been immunized, they did not want “him to be subjected to strangers coming inside the home with potential harm to [him].”
The Coopers also lodged objections to various parts of the declarations submitted in opposition to their motion. They also filed a motion for sanctions against Cross on grounds that her complaint was frivolous and intended to harass them.
Section 425.16, subdivision (a) provides: “The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.”
Although Nygård dealt with the scope of section 425.16, subdivision (e)(3), and this case deals with subdivision (e)(4), Nygård’s discussion of “public interest” is pertinent because both subdivisions apply to statements that are made in connection with an issue of “public interest.” Subdivision (e)(3) additionally requires that the statements be made “in a place open to the public or a public forum.” (§ 425.16, subd. (e)(3).)
See, e.g., Gilbert, supra,
See, e.g., Damon, supra,
See, e.g., Stewart v. Rolling Stone LLC (2010)
See, e.g., D.C., supra,
Civil Code section 2079.10a provides, in relevant part, “(a) Every lease or rental agreement for residential real property entered into on or after July 1, 1999, and every contract for the sale of residential real property comprised of one to four dwelling units entered into on or after that date, shall contain, in not less than 8-point type, a notice as specified in paragraph (1), (2), or (3). [ft] (1) A contract entered into by the parties on or after July 1, 1999, and before September 1, 2005, shall contain the following notice: [ft] Notice: The California Department of Justice, sheriff’s departments, police departments serving jurisdictions of 200,000 or more, and many other local law enforcement authorities maintain for public access a database of the locations of persons required to register pursuant to paragraph (1) of subdivision (a) of Section 290.4 of the Penal Code. The database is updated on a quarterly basis and is a source of information about the presence of these individuals in any neighborhood. The Department of Justice also maintáins a Sex Offender Identification Line through which inquiries about individuals may be made. This is a ‘900’ telephone service. Callers must have specific information about individuals they are checking. Information regarding neighborhoods is not available through the ‘900’ telephone service, [ft] (2) A contract entered into by the parties on or after September 1, 2005, and before April 1, 2006, shall contain either the notice specified in paragraph (1) or the notice specified in paragraph (3). [ft] (3) A contract entered into by the
Our conclusion finds further support in the extensive media coverage that is given to the location of registered offenders. (See, e.g., Wollersheim, supra,
In a footnote, the court implicitly recognized that it could be difficult to reconcile its new rule with existing case law, citing, for example, Dowling, supra,
In Dowling, a dispute erupted between the Dowlings, who owned a condominium, and the Whites, who leased it. During the Dowlings’ third unlawful detainer action to evict the Whites, the Whites’ lawyer wrote a letter to members of the board of the condo complex, complaining about how the Dowlings’ campaign of harassment, threats, and prowling around had made them feel unsafe. Counsel implied that the Dowlings had caused the Whites’ phone service to be terminated and the water heater to be turned off, which created a potentially dangerous
The Dowling court concluded that the letter qualified for protection for two reasons: it was made in connection with issues currently under review by a court in connection with the unlawful detainer action (§ 425.16, subd. (e)(2)) and, pertinent here, in connection with a public issue (§425.16, subd. (e)(4)). Concerning the latter, the court viewed “public issue” broadly and found that the letter qualified for protection because it was intended to advise the board “of the potential nuisance and the safety concerns” that would be of general interest to the residents. (Dowling, supra,
Clearly, under the Du Charme rule, the letter would not qualify for protection. It involved a private dispute; its content was of potential interest only to the limited group of condo residents; and before the letter was sent, there had been no ongoing controversy, discussion, or debate about the Dowlings’ alleged conduct except between them and the Whites.
The Du Charme court characterized Dowling as “somewhat anomalous” and its “public issue” analysis as “dicta.” (Du Charme, supra,
See, e.g., D.C., supra,
Although the rule has been accepted, the result in Du Charme easily could have been reached without the creation of a new rule. Moreover, we believe new, judicially created prerequisites for anti-SLAPP protection should be propounded cautiously and with great perspicacity, especially where, as in Du Charme, the new rule is based on minimal authority and narrows the meaning of “public interest” despite the Legislature’s mandate to interpret the anti-SLAPP statute broadly. Indeed, the adoption of new prerequisites can raise more questions than they answer, as in Du Charme, where the court recognized that the new rule raised difficult additional questions concerning “what limitations there might be on the size and/or nature of a particular group, organization, or community, in order for it to come within the rule we enunciate today.” (Du Charme, supra,
The reason for our concern about new, judicially created rules narrowing anti-SLAPP protection becomes more apparent in Wilbanks, supra,
In our view, the Wilbanks rule, which even further narrows the meaning of “public interest,” is akin to the rule promulgated in Zhao v. Wong (1996)
Indeed, we would find that it passes muster even under the Wilbanks rule. (See fn. 15, ante.)
Given our conclusion, we need not address the Coopers’ further claim that the disclosure of information constituted a matter of public interest because it represented consumer protection information. (See, e.g., Wilbanks, supra, 121 Cal.App.4th at pp. 898-899.)
Penal Code section 518 provides, “Extortion is the obtaining of property from another, with his consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right.”
Penal Code section 524 provides, “Every person who attempts, by means of any threat, such as is specified in Section 519 of this code, to extort money or other property from another is punishable by imprisonment in the county jail not longer than one year or in the state prison or by fine not exceeding ten thousand dollars ($10,000), or by both such fine and imprisonment.”
The Department of Justice’s ML Web site, which the trial court took judicial notice of, informs persons accessing it that “[t]he information on this web site is made available solely to protect the public. Anyone who uses this information to commit a crime or to harass an offender or his or her family is subject to criminal prosecution and civil liability.” (See <http://www.meganslaw.ca.gov/disclaimer.aspx?lang=ENGLISH> [as of July 11, 2011].)
In this regard, we note that “[w]hen the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act. This intention is deemed to be a general criminal intent. When the definition refers to defendant’s intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent.” (People v. Hood (1969)
Given our conclusion and disposition, we need not address the myriad additional issues, claims, and arguments raised by both parties in their briefs. In particular, we need not address Cooper’s claim that the trial court abused its discretion in declining to take judicial notice of certain materials. Nor need we grant Cooper’s request that we take judicial notice of the record in Cross’s prior petition for a writ of mandate. We also need not address claims and arguments concerning the litigation privilege. (Civ. Code, § 47, subd. (b).)
Finally, we note that Cross filed a motion for sanctions against the Coopers for filing this appeal and the Coopers made a motion to strike Cross’s respondent’s brief or portions of it. We deferred ruling on the motion to strike and ordered that it be considered with the appeal. By separate orders, we dispose of both motions.