COREY SPENCER et al., Plaintiffs and Respondents, v. CHARLIE MOWAT et al., Defendants and Appellants.
B295738
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE
Filed 3/24/20
CERTIFIED FOR PUBLICATION
(Los Angeles County Super. Ct. No. BC629596) APPEAL from a judgment of the Superior Court of Los Angeles County, Carolyn Kuhl, Judge. Affirmed.
Beffa Law and Darin T. Beffa for Defendant and Appellant Charlie Mowat.
Hanson Bridgett, Gary A. Watt, Lisa M. Pooley, Kimon Manolius, Kurt A. Franklin, Samatha D. Wolff, Josephine M. Petrick and David C. Casarrubias; Otten Law and Victor Otten for Plaintiffs and Respondents Corey Spencer, Diana Milena Smoluchowska-Miernik and Coastal Protection Rangers, Inc.
Lunada Bay is a premier surf spot, located in Palos Verdes Estates. The Lunada Bay Boys are alleged to be a group of young and middle-aged men, local to Palos Verdes Estates, who consider themselves to be the self-appointed guardians of Lunada Bay. One of their tenets is to keep outsiders away from the surf location through threats and violence. Plaintiffs are non-locals who have tried to surf Lunada Bay, but encountered harassment by the Bay Boys. They brought suit against the Bay Boys and more than a dozen of its individual members. Two of those members filed motions to dismiss under the anti-SLAPP law (
FACTUAL AND PROCEDURAL BACKGROUND
1. Allegations of the Complaint
The operative complaint is the first amended complaint. The plaintiffs are two surfers, Corey Spencer and Diana Milena Smoluchowska-Miernik, and
The defendants are the Lunada Bay Boys, a number of its individual members, including appellants Michael Thiel and Charlie Mowat, and the City of Palos Verdes Estates. Thiel and Mowat are the only defendants who are appellants in this appeal. Our discussion of the complaint‘s factual allegations will therefore focus on their conduct, although some understanding of the general allegations is necessary.
A. General Allegations Against the Members of the Bay Boys
Broadly speaking, plaintiffs allege that the Lunada Bay Boys, sometimes with the tacit approval of City officials who did nothing to stop them, engaged in what is known as “localism” – a practice of keeping outsiders away from the surf site through threats and violence.1 The complaint alleges that the Bay Boys have “blocked public access to the beaches of Palos Verdes Estates, Lunada Bay in particular, for over 40 years. In what is a multi-generational practice of extreme ‘localism,’ and using rules established by the ‘older boys,’ the Bay Boys use physical violence, threats of bodily harm, vandalism to visitor[s‘] vehicles, verbal harassment and other intimidation to enforce their unwritten rule: ‘If you don‘t live here, you don‘t surf here.’ Indeed, members of the Bay Boys believe it is ‘disrespectful’ for outsiders to visit, use or even photograph ‘their’ beach.”
The Bay Boys, specifically including Mowat, were alleged to have built and maintained an unpermitted masonry rock and wood fort seating area, known as “Rock Fort,” near the beach. “The steep switch-backed trails that lack proper improvements act as perfect pinch points, which the Lunada Bay Boys use to block access to the shoreline. From the Rock Fort and the bluffs above, the Individual Members of the Lunada Bay Boys orchestrate illegal activity that is intended to keep the public away. Some of the more egregious tactics include: (1) physically obstructing outsiders’ access to the beach trails; (2) throwing rocks; (3) running people over with surfboards in the water; (4) punching outsiders; (5) stealing outsiders’ wallets, wetsuits and surfboards; (6) vandalizing vehicles and personal property, including slashing tires and waxing pejorative slurs onto vehicle windows; (7) levying threats against outsiders; and (8) intimidating outsiders with verbal insults, gestures, and threats of serious injury.”
The causes of action alleged against the Bay Boys and its individual members (including Mowat and Thiel) include public nuisance, assault and battery.2
B. Specific Allegations Against Appellants
The allegations against Mowat and Thiel are that, as members of the Bay Boys and “Individual Defendants,” they participated in the conspiracy. However, thanks to discovery in a related federal action, plaintiffs obtained records of some text messages among Bay Boys, and, based on those messages, made some specific allegations regarding participation in the conspiracy.3 Some of those allegations specifically related to Mowat and Thiel.
(1) January 20, 2014 Harassment of Christopher Taloa – Mowat Involvement
On January 20, 2014, Martin Luther King Day, a surfer named Christopher Taloa planned a peaceful event to bring multiple non-local surfers to Lunada
(2) January 29, 2016 Harassment of Plaintiff Spencer – Mowat Involvement
Two years later, on January 29, 2016, Mowat was involved in another act of harassment. That day, when plaintiff Spencer was spotted at Lunada Bay, several individuals, including Mowat, exchanged text messages to bring a crowd of Bay Boys to the bay. Specifically, one of the Bay Boys texted, “The kook is here at the bay right now,” and Mowat responded, “On my way!!!!” Once there, Mowat texted, “He‘s in the water. Only five guys out. Get down here boys. I‘m out there.”
Spencer was told by the Bay Bays, “You can‘t surf here, kook.” When Spencer was in the water, one of the Bay Boys intentionally ran over Spencer with his surfboard, slicing his hand open.
That same day, plaintiff Miernik also went to surf Lunada Bay. She was threatened by Bay Boy David Melo, who screamed at her that she would get hurt if she stayed. This was overheard by a City police officer, who briefly detained Melo.
(3) February 5, 2016 Further Harassment of Taloa, Spencer and Miernik – Mowat and Thiel Involvement
On February 5, 2016, Taloa, Spencer and Miernik returned to Lunada Bay with some friends. Mowat texted three other Bay Boys, including Thiel, “Surf looks like it could get epic today. There‘s five kooks standing on top of the trail with their own personal photographer taking pictures of them posing. I thinks it‘s the same Taloa crew. This could get ugly today. We all need to surf.” Mowat followed up, confirming, “It‘s definitely Taloa.” One of the Bay Boys whom Mowat had messaged responded to the scene. He circled the non-local group with a video camera, following Taloa along the bluffs, while others called Spencer names.
A few hours later, Mowat wrote the others, again including Thiel, stating, “Too bad this bitch that called the cops on [David Melo] is such a cunt. She
(4) The February 13, 2016 Aborted Police Sting and Harassment of Miernik – Thiel Involvement
From time to time, Lunada Bay and its reputation for localism made the news. In December 2015, the City Police Chief was quoted in the Los Angeles Times as intending to add patrols to the coast and make the first arrest in years of one of the assailants. The Bay Boys were, unsurprisingly, not happy with the idea of increased enforcement. In February 2016, Thiel coordinated a letter-writing campaign to the City, telling the others to write calmly and rationally to express their outrage at the chief‘s behavior.
Evidence submitted in connection with the anti-SLAPP motion would later reveal that in January 2016, at a meeting with other local police chiefs, it was agreed that police officers from other departments would help the City in a sting operation, which was planned for February 13, 2016. Plaintiffs’ complaint alleged that, the day before the planned sting, Thiel met with the City Manager to discuss his complaints regarding policing. Thiel told the City Manager that he was aware an undercover operation was scheduled at Lunada Bay for the following day, and stated that they better not be doing it then. The City Manager called the Police Chief, who cancelled the undercover operation.
On February 13, 2016, the date previously set for the now-cancelled sting operation, there was no enforcement at all at Lunada Bay. That day, plaintiff Miernik returned to the bay with a friend. Bay Boys called her a bitch and a liar. One of them shook up a beer and sprayed it on her. Others filmed her; she asked them to stop, but they replied that she was sexy and excited them. One said she made him “excited” and “hard,” which makes it easier to get into his wetsuit; he then changed into his wetsuit, exposing himself to her.
2. The Anti-SLAPP Motions
An anti-SLAPP motion presents a means by which a defendant, sued for conduct in furtherance of the constitutional right of petition or free speech, can require a plaintiff to establish that there is a probability of prevailing on the claim or face early dismissal of the action. If the defendant first establishes a prima facie showing that a claim is based on so-called
Thiel and Mowat each filed anti-SLAPP motions, as did another defendant, Paul Hugoboom. Hugoboom‘s motion is not part of the record on appeal; it would become relevant, however, because Mowat‘s motion contained no independent argument, but simply joined Thiel‘s and Hugoboom‘s motions. Mowat‘s motion was a joinder in Thiel‘s and Hugoboom‘s, and Mowat has chosen not to include Hugoboom‘s motion as part of the record on appeal. Thus, Mowat‘s legal position on appeal is restricted by the arguments raised by Thiel in the trial court.4
A. Thiel‘s Supporting Declaration
In Thiel‘s motion, he argued that the complaint against him was based on protected activity because it was founded on his letter writing campaign and his conversation with the City Manager – acts in furtherance of his constitutional right to petition. He supported the motion with his declaration, which explained that he is “10-40 years older” than most of the other individual defendants and has “very little awareness of what goes on in their lives beyond seeing them occasionally at Lunada Bay or other local beaches.” He explained that he had been “increasingly concerned by the actions of some of the people visiting Lunada Bay. In addition to the plaintiffs in this matter, who seemed completely focused on generating publicity for themselves at the community‘s expense, the neighborhood was also being visited by individuals doing such things as photographing people and license plates and screaming obscenities at anyone they thought might be a ‘bay boy.’ All the while, the then-police chief seemed more interested in arresting a ‘bay boy’ than in keeping the peace. It seemed to me that the then-police chief had declared war on the community for his own gain in the form of positive press coverage. Based on my concerns, I wrote a letter to my elected officials and encouraged others to do the same.” Similarly, Thiel explained that he met with the City Manager to discuss his belief that the City was misusing local resources in going after the local surfing community. He specifically denied having known about the planned police sting and disputed talking to the City Manager about it.
As to his participation in the group text messages, Thiel stated that he was not part of any coordinated campaign to harass Miernik and others; he simply
B. Mowat‘s Joinder
Mowat joined Thiel‘s motion, explaining that he, too, is being sued for communicating with the City Manager and other residents on a matter of public controversy. He filed no evidence in support of his motion.
3. Plaintiffs’ Opposition
In their opposition to Thiel‘s motion, plaintiffs argued in no uncertain terms that their complaint was based on acts of harassment and threats of violence, not the petitioning activity highlighted in Thiel‘s motion. They explained, “Thiel is not a Defendant because he talked to the City Manager or told his gang of friends to write letters. To the contrary, he conspired to harass, assault, batter, and intimidate visitors to the beach; this is the gravamen of Plaintiffs’ complaint.” According to plaintiffs, the petitioning activity was simply evidence of the underlying conspiracy. Plaintiffs believed that Thiel manipulated the City Manager into calling off the sting so that the Bay Boys would be free to harass beachgoers the next day – as they did, including the sexual harassment of plaintiff Miernik – but the principal thrust of the complaint was the actual harassment.
In opposing Mowat‘s motion, plaintiffs emphasized that Mowat failed to identify allegations of his own protected activity as the basis for his motion.
Plaintiffs supported their opposition with numerous declarations from surfers who had been harassed and attacked by the Bay Boys over the years, as well as police reports and newspaper stories documenting the Bay Boys’ campaign of localism.5
4. Replies
In reply, Thiel argued that the gravamen of the complaint against him could not be harassment and threats of violence, because plaintiffs presented no evidence that he did any of those acts. Thus, he maintained, he was simply being sued for his petitioning activity to the City Manager.
In Mowat‘s reply, he, for the first time, addressed the individual allegations against him in the complaint, and argued that they were all based on
5. Hearing on Anti-SLAPP Motions
At the hearing, Thiel‘s counsel again argued that the only evidence against Thiel was that he met with the City Manager and organized a letter-writing campaign. Plaintiffs’ counsel again repeated that the gravamen of the complaint is a conspiracy to intimidate and harass, not Thiel‘s communications with the City Manager or letter-writing campaign. Counsel explained, “[W]e are not going after Mr. Thiel because he met with the City Manager. That‘s merely underlying evidence of this overall conspiracy.”
In response to Mowat‘s argument that he had simply been arranging a counterprotest, plaintiffs’ counsel responded that the allegations are that Mowat was not arranging a counterprotest but planning to intimidate non-locals with the other Bay Boys – which, in some instances, led to the targeting of plaintiffs.
The trial court took the matter under submission.
6. Ruling and Appeal
The court‘s order on the anti-SLAPP motion was part of a minute order that included rulings on multiple submitted matters. One of those matters was a demurrer for uncertainty – which had been pursued by a number of defendants including Mowat, but not Thiel. The court sustained the demurrer with leave to amend to require plaintiffs to plead which defendant committed which alleged underlying violation or tortious act upon which conspiracy liability is sought to be based. In the course of its discussion sustaining the demurrer with leave, the court explained, “In the [operative complaint], Plaintiffs allege that each of the Individual Defendants engaged in a conspiracy dedicated to keeping the public away from Lunada Bay. As such, the allegations that certain of the Individual Defendants committed torts or other violations of California law within the ambit of the alleged civil conspiracy may be sufficient to subject all of the Individual Defendants to liability for such tortious conduct. [Citation.]”
Thiel and Mowat filed timely notices of appeal.
DISCUSSION
1. Law Governing Anti-SLAPP Motions and Standard of Review
“Anti-SLAPP motions are evaluated through a two-step process. Initially, the moving defendant bears the burden of establishing that the challenged allegations or claims ‘aris[e] from’ protected activity in which the defendant has engaged. [Citations.] If the defendant carries its burden, the plaintiff must then demonstrate its claims have at least ‘minimal merit.’ [Citations.]” (Park, supra, 2 Cal.5th at p. 1061.)
Before a court can proceed to the second prong, the moving defendant must satisfy the first prong – that is, establish that the cause of action arose from protected activity, as the term is defined in the anti-SLAPP statute. Subdivision (e) is the operative provision and describes four categories of protected speech and conduct: “(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 issue of public interest.” (
2. Thiel And Mowat Failed to Establish the First Prong – That the Causes of Action Arise From Protected Activity
“A claim arises from protected activity when that activity underlies or forms the basis for the claim. [Citation.] Critically, ‘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.’ [Citations.]” (Park, supra, 2 Cal.5th at pp. 1062-1063.) “To determine whether a claim arises from protected activity, courts must ‘consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.’ [Citation.] Courts then must evaluate whether the defendant has shown any of these actions fall within one or more of the four categories of ‘ “act[s]” ’ protected by the anti-SLAPP statute. [Citations.]” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884.)
Here, the causes of action against Thiel and Mowat are pursued on a theory of conspiracy – conspiracy being a doctrine of liability and not a cause of action itself. (AREI II Cases (2013) 216 Cal.App.4th 1004, 1021.) “To establish conspiracy, a plaintiff must allege that the defendant had knowledge of and agreed to both the objective and the course of action that resulted in the injury, that there was a wrongful act committed pursuant to that agreement, and that there was resulting damage. [Citation.] A conspiracy requires evidence that each member of the conspiracy acted in concert and came to a mutual understanding to accomplish a common and unlawful plan, and that one or more of them committed an overt act to further it.’ [Citation.] Thus, conspiracy provides a remedial measure for affixing liability to all who have ‘agreed to a common design to commit a wrong’ when damage to the plaintiff results. [Citation.]” (IIG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 652.) “A participant in the conspiracy ‘effectively adopts as his or her own the torts of other coconspirators within the ambit of the conspiracy.’ [Citation.]” (Navarrete v. Meyer (2015) 237 Cal.App.4th 1276, 1291.) The doctrine is one of vicarious liability; each member of the conspiracy becomes liable for all acts done by others pursuant to the conspiracy. (Ibid.)
In this case, plaintiffs sued Thiel and Mowat for public nuisance, assault and battery—not necessarily for any acts of nuisance, assault or battery which they personally may have committed, but for acts committed by other Bay Boys with whom Thiel and Mowat had allegedly conspired. The question presented to us is: When a tort cause of action is asserted on a conspiracy theory, which of the defendant‘s alleged “acts” are considered for the purposes of the first prong anti-SLAPP analysis – the acts which constitute the tort itself, or the acts which evidence the defendant‘s participation in the conspiracy? Thiel‘s and Mowat‘s anti-SLAPP motions are based on the assumption that only the latter acts are considered. We disagree; it is the tort itself that controls, not individual acts that demonstrate the existence of a conspiracy.
Indeed, this conclusion is compelled by Park, which holds “a claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.” (Park, supra, 2 Cal.5th at p. 1060.) When liability is asserted for the target act of a conspiracy, the preliminary speech or petitioning activity is simply evidence of the defendant‘s liability, not “the wrong complained of.”7
Richmond Compassionate Care Collective v. 7 Stars Holistic Foundation, Inc. (2019) 32 Cal.App.5th 458 (Richmond) is illustrative. In that case, the plaintiff received a permit to open a dispensary in the City of Richmond but was unable to obtain real property on which to locate its dispensary. It brought suit against competing dispensaries and their owners, alleging a conspiracy to prevent plaintiff from obtaining any location for its dispensary. Plaintiff alleged that the conspiracy involved presenting phony real estate deals to lenders to tie up their property, falsely telling property owners that their land would be subject to federal forfeiture if they leased to plaintiff, and threatening property owners to notify their lenders if they leased to a dispensary. (Id. at p. 462.) Defendants brought an anti-SLAPP motion, arguing that they were being sued for the protected conduct of joining a political group to influence local ordinances.8 (Id. at pp. 464-465.) The Court of Appeal disagreed, concluding the essence of the complaint, “was the private actions the group took to restrain trade and monopolize the medical marijuana market in Richmond. That was the gravamen, the thrust, of the cause of action. Whatever the protected activity, it was at the most incidental. [Citations.]” (Id. at p. 470.)
To the same result is Novartis Vaccines & Diagnostics, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2006) 143 Cal.App.4th 1284 (Novartis). In that case, defendant opposed animal testing performed at a lab used by plaintiff to test some of its products. Defendant targeted certain of plaintiff‘s employees for “home visits,” which were, “terrifying incidents in which persons broke employees’ windows, vandalized their cars, set off ear-piercing alarms in their yards, and left excrement on their doorsteps, as well as other tactics, including publication of employees’ personal information on the internet and that of employees’ spouses and children.” (Id. at p. 1288.) When plaintiff sued, defendant filed an anti-SLAPP motion. To be sure, the only conduct defendant itself was alleged to have committed was posting the employees’ personal information on the internet; plaintiffs pursued a theory that the defendant had ratified, authorized, aided and/or abetted the unlawful home visits. (Id. at pp. 1291-1292.) The trial court denied the anti-SLAPP motion, concluding that the gravamen of the complaint was that defendant was liable with its “coconspirators” for the home visits. (Id. at pp. 1295, fn. 2.) On appeal, the defendant again argued the complaint was directed to its speech in connection with a public issue. The plaintiff responded that the gravamen was not
Independent research has disclosed one case that might be considered at odds with Richmond and Novartis. In Contreras v. Dowling (2016) 5 Cal.App.5th 394, a tenant sued her landlord for illegal entries into her apartment, and also sued the landlord‘s counsel for allegedly conspiring with the landlord to commit the illegal entries. The landlord‘s counsel pursued an anti-SLAPP motion on the basis that the only conduct he allegedly committed was the protected conduct of advising his clients in the course of pending or threatened litigation. The Contreras court concluded his anti-SLAPP motion should have been granted, agreeing that the focus should be on the attorney‘s conduct, not the illegal entry that was the alleged object of the conspiracy. (Id. at pp. 399, 409-410.) Contreras is distinguishable, both because it involved the factual scenario of an attorney allegedly acting in concert with his clients, and because the appellate court concluded the plaintiff‘s allegations of conspiracy were conclusory and alleged nothing beyond the provision of routine legal services. (Id. at p. 413.) Ignoring the defective conspiracy allegations, the court analyzed separately the respective acts of the landlord and attorney. It found the only acts alleged against counsel were in advising his client, protected activity.
DISPOSITION
The denial of the anti-SLAPP motions is affirmed. Thiel and Mowat shall pay plaintiffs’ costs on appeal. Plaintiffs’ request for sanctions for pursuit of a frivolous appeal is denied.
RUBIN, P. J.
WE CONCUR:
MOOR, J.
KIM, J.