ROBERT DZIUBLA et al., Plaintiffs and Appellants, v. IGNATIUS A. PIAZZA II et al., Defendants and Respondents.
D076183
Court of Appeal, Fourth Appellate District, Division One, State of California
Filed 12/29/20
CERTIFIED FOR PUBLICATION
Greer & Associates, Curtis Keith Greer and C. Tyler Greer for Plaintiffs and Appellants.
Call & Jensen, William Paul Cole and Nilab Rahyar Tolton for Defendants and Respondents.
This appeal concerns a soured business relationship that devolved into a fight that was nothing if not personal. Plaintiffs and appellants Robert Dziubla and Linda Stanwood claim that defendant Ignatius Piazza II, owner of a Nevada firearms training facility, harassed and threatened them by publishing defamatory statements along with their personal identifying information and sending associates to invade their home. Piazza retorts that
Cutting a path between these two extremes, the trial court appropriately distinguished protected from unprotected activities in evaluating Piazza‘s special motion to strike under California‘s anti-SLAPP statute (
That clarification involves so-called “doxing” allegations in the complaint—plaintiffs’ claim that Piazza published private personal identifying information about them to thousands of gun enthusiasts as a thinly-veiled threat about what could happen if they continued to litigate the business dispute.1 Although it was included in an otherwise-protected litigation “alert” that discussed the pending lawsuit, the doxing information was entirely extraneous to the court proceedings that were the ostensible subject of the communication. We thus reject Piazza‘s assertion that plaintiffs cannot meet the “minimal merit” standard on the anti-SLAPP motion because the doxing allegations would necessarily be barred by the litigation privilege in
FACTUAL AND PROCEDURAL BACKGROUND
1. The Nevada Suit
Defendant Piazza owns Front Sight, a firearms training and self-defense business in Pahrump, Nevada. According to Piazza, Front Sight has taught tens of thousands of individual students and built up a membership of over 200,000 people. Members receive e-mail communications to keep them informed on Front Sight developments and, of course, business promotions.
In 2012, Piazza was pursuing a loan for an ambitious expansion project that would transform Front Sight into a resort destination—complete with timeshare condominiums and a full-service conference center. After he failed to secure a traditional bank loan, Piazza explored higher risk options and ultimately agreed to work with plaintiff Dziubla, who represented that his team could raise $75 million from foreign investors if Front Sight paid upfront installments to cover expenses. By 2015, the amount Dziubla thought he could raise had decreased to $25 million. One year later, he loaned Piazza about $6 million to get the project started.
Piazza‘s loan came from the Las Vegas Development Fund (LVDF), which is run by Dziubla and his wife Stanwood. The loan agreement was subject to certain conditions that Dziubla and Stanwood allege Piazza breached in multiple ways. LVDF filed a notice of default in September 2018 and Piazza then sued in Nevada to prevent foreclosure on the Front Sight property (among other relief). That litigation is ongoing and provides the context for the dispute in this case.
2. The California Litigation
Shortly after LVDF recorded a notice of default on Piazza‘s Nevada property, Dziubla and Stanwood began receiving disturbing visits at their California residence from two men, Danielo Quidang and Patrick Schneemann, who claimed to be private investigators. According to plaintiffs, the men spied on their home, snuck onto their property to take pictures and videos, and yelled threats when plaintiffs confronted them. Dziubla and Stanwood obtained restraining orders against the men.
The next month, Piazza published a manifesto characterizing Dziubla as an enemy to Front Sight. This “Emergency Action Alert” (Alert) was posted on Front Sight‘s website and e-mailed to its 200,000 members. In the Alert, Piazza described Dziubla as a “Lying, Two-Faced, Gun-Grabbing Hillary Clinton Supporting, Con Man” who was “attempting to STEAL Front Sight” through the Nevada suit. The Alert used forceful—even violent—rhetoric and appealed for monetary contributions to Piazza‘s “litigation war chest.” Of particular significance in this case, Piazza also doxed Dziubla and Stanwood in the Alert by publishing their home address, pictures of their house, and photos of Dziubla including a close-up image of his face. These pictures were taken by Quidang and Schneemann, who were allegedly hired by Piazza.
After learning about the Alert, plaintiffs filed this California lawsuit against Piazza, Quidang and Schneemann alleging a dozen causes of action that fall roughly into two categories: (1) trespass and privacy claims concerning Quidang and Schneemann‘s activities on their property; and (2) defamation and harassment claims concerning Piazza‘s publication of the Alert.
Piazza challenged the defamation and harassment allegations under California‘s anti-SLAPP (strategic lawsuit against public participation) statute, arguing that the Alert was protected speech. (
DISCUSSION
In its broad outline, we largely endorse the reasoning of the trial court: Piazza‘s Alert, which provides the basis for virtually all of plaintiffs’ challenged claims,3 is protected by the anti-SLAPP statute because it was published in furtherance of Piazza‘s right to petition. (§ 425.16, subds. (a), (b)(1), and (e).) We likewise agree with the trial court that as to most of those claims, plaintiffs could demonstrate minimal merit but for their failure to overcome Piazza‘s litigation privilege defense. However, the privilege does not apply indiscriminately to everything included in the Alert just because that document broadly relates to litigation. As we explain in more detail, the doxing allegations should be treated separately from the rest of the challenged statements in the Alert. Publishing plaintiffs’ personal information was in no way rationally related to litigation, and the disclosure of that information is not protected by the corresponding privilege.
1. Basic Anti-SLAPP Principles
The anti-SLAPP statute enables defendants to quickly terminate meritless actions against them that are based on their constitutionally protected rights to speak freely and petition for redress of grievances. (
If defendants can make this initial showing, the burden shifts to the plaintiffs in the second step to demonstrate a prima facie case that would enable them to prevail on the challenged claims. (Baral, supra, 1 Cal.5th at pp. 384-385.) Plaintiffs only need to show “minimal merit” to defeat the special motion to strike. (Navellier v. Sletten (2002) 29 Cal.4th 82, 94.) At this stage, “[t]he court does not weigh evidence or resolve conflicting factual claims ... [but rather] accepts the plaintiff‘s evidence as true, and evaluates the defendant‘s showing only to determine if it defeats the plaintiff‘s claim as a matter of law.” (Baral, supra, at pp. 384-385.) Appellate courts independently review orders granting or denying a special motion to strike. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055 (Rusheen).)
2. Step One: Plaintiffs’ Claims Arise Out of Protected Activity
In this section, we independently evaluate the nature of the Alert. We conclude that the first prong of the anti-SLAPP analysis is satisfied because the Alert (1) forms the basis for plaintiffs’ claims, (2) relates to the Nevada litigation, and (3) does not fall within the exceptions that plaintiffs highlight. The first two points are not truly contested by plaintiffs, but we examine them in the course of our independent review.
a. The Alert forms the basis for plaintiffs’ claims.
As a preliminary matter, we note that Piazza‘s anti-SLAPP motion sought to strike only seven of plaintiffs’ twelve causes of action, targeting the allegations dependent on the Alert and mostly avoiding those based on Quidang and Schneemann‘s activities at plaintiffs’ house. The challenged causes of action included: (1) Criminal Threats, alleging that the “incendiary language” in the Alert and the “very nature of the distribution list” amounts
b. The Alert is protected because it relates to litigation.
The Alert itself is an erratic ten-page document. It starts as a progress report, transitions to an expose, and ends as a fundraising solicitation. Piazza opens by explaining the status of the renovation project and how it will benefit Front Sight members. Dziubla is quickly introduced as a liar and a con man, and then Piazza “divulge[s] the details of his identity, where he lives, what he does, and how he hoodwinked us into falling for his scam.”
After this section, the focus of the document turns to funding the Nevada litigation. Piazza asks for monetary contributions and offers to reward members with “surplus credits, memberships, and certificates” that will be converted, in vague terms, to ownership interests in Front Sight when the renovations are complete. Piazza states these funds will be used for three purposes, to (1) “[d]estroy Dziubla by rapidly and aggressively prosecuting our lawsuit against him,” (2) increase Front Sight marketing to grow the business, and (3) “increase the pace of construction” to quickly complete the resort.
Despite its vacillating nature, reading the Alert as a whole makes it clear that Piazza wrote and distributed the document in furtherance of his right to petition the Nevada courts for relief. (
c. None of the exceptions cited by plaintiffs apply.
Plaintiffs do not contest the general point that the anti-SLAPP statute protects litigation-related documents, but they argue the Alert falls outside of the statute‘s purview because it is both illegal and constitutes commercial speech. In plaintiffs’ view, these defects nullify any constitutional protection the Alert might otherwise enjoy. Although plaintiffs have correctly identified two exceptions to the anti-SLAPP statute‘s reach, they have not demonstrated that either applies here.
As to illegal conduct, it is true that a special motion to strike cannot be used by a defendant whose allegedly protected activity was illegal. (Flatley v. Mauro (2006) 39 Cal.4th 299, 320 (Flatley).) Plaintiffs argue this was the case, offering three separate theories of how the Alert was illegal. They contend it was (1) a “terroristic criminal threat” under
Regarding the criminal threats theory of illegality, the statute plaintiffs highlight requires (1) a willful threat to commit a crime that would result in death or great bodily injury to another, (2) with the specific intent that it be taken as a threat by the victim, (3) which is so “unequivocal, unconditional, immediate, and specific” that it (4) causes the victim to be in sustained fear, and (5) that such fear is reasonable. (
“I am going to need your help to not only stop [Dziubla] in his tracks, but also give him what he truly deserves for what he has done to us, while we come together as a group, 200,000 strong, to complete the resort in record time!”
[¶] ... [¶]
“I‘ll bet it makes your blood boil as much as mine to think this traitor used the money we paid him that was supposed to support the Front Sight project and instead used it to support the gun-grabbing schemes of Hillary Clinton. This turncoat needs to be punished, to the full extent the law
will allow, for what he has done to us and what he has done to you.” [¶] ... [¶] “Here‘s how we turn the tables on Dziubla and shove his dirty deeds against you right down his throat [. . . .] [¶] Now that we filed our lawsuit, we press our prosecution of the litigation like a blitzkrieg and we do not ease our blistering legal attack until we have decisively won, forcing Dziubla into debtor‘s court to expose his assets for our collection or forcing him into financial ruin in bankruptcy court.” [¶] ... [¶]
[Beside a check box for financial contributions:]
“Yes, Dr. Piazza. I want you to destroy the lying, two-faced, gun-grabbing Hillary Clinton supporting, con man Robert Dziubla by rapidly and aggressively prosecuting our lawsuit against him to overwhelming victory.”
Plaintiffs might have a colorable argument that this language could be interpreted as a threat, but that falls short of a necessary conclusion as a matter of law. As seems apparent from context, the violent terms are not meant to be read literally. Piazza describes destroying Dziubla, but only through court action. His “ruin” will be financial, and his “punishment” will be “to the full extent the law will allow.” Given the consistent references to the lawsuit, we are unable to find anything that would qualify as an indisputable threat under
Cognizant of this deficiency, plaintiffs argue that Piazza‘s threat can only be understood in context, and that his dissemination of the Alert to 200,000 “gun enthusiasts” raised the specter of violent retaliation against Dziubla. In doing so, however, plaintiffs merely describe the inherent risks of doxing, and they ignore that a criminal threat requires specific intent. In addition to other disputed issues, Piazza‘s intent is contested; based on that alone, we can conclude that plaintiffs have not demonstrated the Alert contained a criminal threat as a matter of law.7
Plaintiffs rely on substantially the same arguments and cases when they suggest, in the alternative, that the Alert constitutes harassment under
Taking a slightly different tact in their last illegality argument, plaintiffs contend the Alert‘s offer of Front Sight credits and memberships was an unregistered sale of securities that violates both Nevada and federal law. This suggestion, again, falls short of demonstrating a criminal act as a matter of law. Instead, it raises a host of questions that are as yet undetermined—such as whether these were investments or donations and, if the former, whether any exemptions apply. Some language suggests a donation; Piazza characterized his program as a “reward” to his “loyal and supportive member[s] for your faith in Front Sight and your financial support in overcoming the obstacles of litigation.” But other language suggests some kind of investment structure; “benefits” will grow in accordance with the level of participation. Even assuming the program is more than a donation, it is unclear how various “credits” would later convert to ownership interests and when an ownership interest might mature: “When it is time to turn over Front Sight Firearms Training Institute to you, I will allow you to trade in your surplus credits, memberships, and certificates for your percentage of ownership.” Piazza seems to have left this intentionally vague. We agree with the trial court that “some of [the Alert‘s] language arguably involves the sale of securities“—but this is less than definitive as a matter of law.
On all of plaintiffs’ theories, there is a “factual dispute as to the legality” of Piazza‘s actions in writing and distributing the Alert. As such, his special motion to strike cannot be denied on those grounds. (Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1367.)
Apart from framing the Alert as a crime, plaintiffs attempt to wrest this communication from the protective reach of the anti-SLAPP statute by asserting it falls within the statute‘s exception for commercial speech. This exception, detailed in
We are doubtful that Piazza‘s Alert can be fairly described as primarily an effort to sell goods or services, but even assuming it was the Alert does not contain the comparative advertising that marks the commercial speech exception. This requirement is described in
3. Step Two: Plaintiffs Failed to Show They Could Prevail on Most of the Claims
In this section, we review the litigation privilege as applied to the facts of this case and conclude it defeats most—but not all—of plaintiffs’ challenged claims. In particular, the doxing statements included in the Alert are not privileged.
a. The litigation privilege defeats most of plaintiffs’ claims.
In the second prong of the anti-SLAPP analysis, where plaintiffs must demonstrate the “minimal merit” of their claims, they must also show they can overcome any affirmative defense the defendant has raised. (Dwight R. v. Christy B. (2013) 212 Cal.App.4th 697, 715–716; Bently Reserve LP v. Papaliolios (2013) 218 Cal.App.4th 418, 434.) Here, the trial court determined that plaintiffs could probably show minimal merit as to most of their claims8 except that they could not overcome Piazza‘s defense that the litigation privilege applies to the Alert. We likewise agree that the litigation privilege disposes of most of plaintiffs’ challenged claims in the second part of the anti-SLAPP analysis.
The litigation privilege is a statutory protection that has been interpreted expansively. (
Because the privilege “attaches to any publication that has any reasonable relation to [a court] action and is made to achieve the objects of the litigation,” we have little trouble concluding that the Alert generally falls under its broad scope. (Pettitt, supra, 28 Cal.App.3d 484, 489.) As discussed above, the Alert informed Front Sight members about the Nevada litigation and asked for their help to fund it. As such, it was written and distributed to achieve the ends of Piazza‘s petition for judicial relief. (See Wilcox, supra, 27 Cal.App.4th 809, 826 [third-party who distributed memorandum to raise funds for litigation “would have enjoyed an absolute immunity from suit under the litigation privilege” for her efforts if she had been a party]; see also Costa v. Superior Court (1984) 157 Cal.App.3d 673, 678; Izzi v. Rellas (1980) 104 Cal.App.3d 254, 262–263; Rosenthal v. Irell & Manella (1982) 135 Cal.App.3d 121, 126.) However, the fact that the Alert generally falls under the litigation privilege does not mean everything within it is automatically protected.
b. The doxing allegations are not barred by the litigation privilege.
The allegedly defamatory statements in this case meet the logical relation test because they serve the ends of the litigation. Impolite as his name-calling may read, Piazza would be hard pressed to tell his version of the story and request help from Front Sight members without the freedom to describe Dziubla as a liar and a con man.
Piazza‘s doxing disclosures are a different matter. There was simply no good reason to include Dziubla‘s home address, images of his house and a close-up picture of his face in a communication aimed at explaining the status of ongoing litigation and soliciting financial support. Piazza argues to the contrary, asserting that he “specifically referenced Dziubla‘s address and photos of his home to argue Dziubla was lying when he represented to Front Sight that he was broke.” But the accompanying text, describing Dziubla‘s wealth based on the approximate worth of his home and possessions, had already accomplished this same purpose. Furthermore, the precise address is unnecessary and the pictures of the house hardly demonstrate Piazza‘s point; the home does not appear particularly lavish and the make of the cars, depicted in an unlit garage, is indiscernible. All this information really provides is an additional tool for a would-be harasser to find the right house. Piazza‘s failure to offer any justification at all for the close-up image of Dziubla‘s face underscores our conclusion.
In this same vein, we conclude that the doxing information included in the Alert had no connection with, nor legitimate relation to, the Nevada litigation. As a result, it is not protected by the litigation privilege. Contrary to Piazza‘s contentions, this court is not bound to interpret “logical relation” so expansively that we cannot separate the wheat from the chaff. And as the Nguyen court observed, enforcing the relevancy requirement does not narrow the litigation privilege, but rather prevents its abuse. (Nguyen, supra, 69 Cal.App.4th 140, 150.)
4. Application on Remand
In the preceding sections, we affirmed the principle that litigation-related communications such as the Alert fall under the protections of the anti-SLAPP statute in the first step of the analysis. In the second step, we clarified the contours of the litigation privilege and concluded that the doxing allegations fall outside of its protections because those disclosures were unrelated to the Nevada litigation. This last section functions to bring the discussion back to the practicalities of this case and clarify the effect of our decision on what remains of plaintiffs’ case.
As we noted previously, the trial court granted Piazza‘s special motion to strike as to six of the seven causes of action he challenged: Criminal Threats, Defamation, Privacy (False Light), Negligent Infliction of Emotional Distress, Injunction, and Violation of the Ralph Civil Rights Act of 1976 (
The first is the civil rights cause of action, which partially survived the anti-SLAPP motion. In the words of Baral, this was a “mixed cause of action,” in that it included allegations of both protected and unprotected activity. (1 Cal.5th at p. 382.) Because it considered the Alert protected by the litigation privilege, the trial court struck the allegations based on the Alert but declined to strike those based on Piazza‘s hiring of Quidang and Schneemann. Our decision modifies this result so that the alleged civil rights violation evidenced by the doxing can still be developed by plaintiffs.
The second affected cause of action is plaintiffs’ request for an injunction.9 Here, plaintiffs asked the court to order Piazza to take down the Alert from Front Sight‘s website, and it was stricken by the trial court under the same rationale—that the entire Alert was protected by the litigation privilege. In the meantime, Piazza took down the Alert as part of a deal to avoid prosecution for a misdemeanor charge. But as plaintiffs point out, the deal only requires Piazza‘s compliance for six months. Given the personal and contentious nature of this dispute, the trial court should have the opportunity to consider whether an ongoing injunction to prevent Piazza from republishing the doxing information is warranted.
These are the only causes of action before us that are affected by our decision. The others either did not rely on the doxing as a source of harm,10 or suffer from some other defect.11 There were additional causes of action that Piazza did not challenge in his special motion to strike. Those theories, of course, remain for plaintiffs to pursue. And as we read the complaint, the
DISPOSITION
The order granting the special motion to strike is reversed in part as to two of plaintiffs’ cause of action – the tenth, seeking an injunction, and the twelfth, alleging a civil rights violation – but only as to the claims included in these causes of action that allege injury from the publication of their personal information, i.e., the doxing allegations. In all other respects, the order is affirmed. The matter is remanded to the trial court for further proceedings consistent with this opinion. The parties shall bear their own costs on appeal.
DATO, J.
WE CONCUR:
HUFFMAN, Acting P. J.
HALLER, J.