Filed 6/22/22 Lawler v. Guillon Enterprises CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Plaintiffs Morgan Lawler, Sierra Butler, and Lacey Berry won an employment dispute against their former employer, Crush Steakhouse-Ukiah, Inc. (Crush), and a Crush manager. Thereafter, a co-owner of Crush, Doug Guillon, authored a letter to Crush employees addressing the effect of the judgment on Crush’s financial ability to reopen after the pandemic. The letter accused plaintiffs of being liars, perjurers, and potential criminals. Provoked, plaintiffs sued four companies allegedly related to Crush and Guillon for defamation. Two of the companies, Guillon Enterprises, Inc. and CG Foods, Inc. (collectively, defendants), appeal from an order denying their anti-SLAPP motion to strike the defamation claim. (See Code Civ. Proc., § 425.16.)[1] Because we conclude Guillon’s allegedly defamatory statements were not “ ‘in connection with a public issue’ ” as the anti-SLAPP statute defines that term, we affirm the order allowing the litigation to proceed. (§ 425.16, subd. (e).)

BACKGROUND

1. Plaintiffs’ Employment Lawsuit against Crush

After leaving their employment with Crush, plaintiffs sued Crush, a Crush manager named Nicholas Karavas, and Guillon. The operative first amended complaint, filed in January 2018, asserted claims for gender and pregnancy discrimination, sexual harassment by Karavas, unpaid wages, failure to provide meal breaks, and other Labor Code violations.

In November 2019, a jury found Crush liable for firing Lawler based on her pregnancy, and for failing as to all three plaintiffs to pay wages owed, to deduct only proper amounts from paychecks, and to provide meal breaks. The jury also found Crush and Karavas liable for sexual harassment against Berry and Butler, and for retaliating against Butler when she objected to the harassment.

In March 2020, the court entered a judgment awarding plaintiffs more than $305,000 against Crush, $125,000 against Karavas, and almost $135,000 in attorney fees and costs, plus interest.

2. The April 3 Letter

After the court finalized the judgment, Guillon authored a letter to Crush employees to address their concerns about the effect of the judgment on Crush’s financial ability to reopen. According to the letter, Crush was a successful operation for many years until three former employees “conspired” to sue Crush in a “classic[] #MeToo case.” Guillon claims in the letter that the jury awarded Berry $135,000 “for lying on the stand,” awarded Butler $175,000 for a “great acting job,” and gave $135,000 to the “crooked” attorney whose “only accomplishment” was to “teach witness[es] how to lie in court.” He further characterizes the plaintiffs as the “ ‘lying three’ ” and claims Crush cannot reopen because of their “ridiculous” judgment. Guillon notes that plaintiffs have not accepted his offer to make only a limited payment on the judgment the following year so that Crush can afford to reopen. Guillon’s letter concludes, Crush “may be dealing with . . . criminals.”

On April 3, 2020, Tyler Biscocho, a manager at Crush, disseminated Guillon’s letter to Crush employees using the messaging function in Crush’s scheduling system. Published in this manner, Guillon’s letter would have reached some 80 Crush employees.

After one Crush employee posted the letter to social media, Lawler posted a response to the letter on her social media page claiming that the letter contained wrong information, which prompted several individuals to comment on her social media post. Most of the comments expressed support for Lawler, but at least one individual accused Lawler of lying about her claims against Crush.

Crush filed for bankruptcy a few days later, on April 7. Within the next few days, manager Biscocho and the owners of Crush published letters about the bankruptcy on social media and in the Ukiah Daily Journal. Both letters blamed Crush’s bankruptcy on plaintiffs’ lawsuit.

3. The Current Lawsuit and Defendants’ Anti-SLAPP Motion

A few months later, plaintiffs sued Guillon, Inc.; Guillon, Inc. Construction; Guillon Enterprises, Inc.; and CG Foods, Inc.[2] for defamation based on statements in Guillon’s April 3 letter to employees that plaintiffs are the “ ‘lying three,’ ” that Berry is an “ ‘accomplished liar’ ” who lied on the stand, and that plaintiffs “ ‘may be . . . criminals.’ ” The operative first amended complaint claims Guillon made those statements as an employee, agent, officer, director or managing agent of the four companies, and that the companies are vicariously liable for the allegedly defamatory statements and are each other’s alter egos.

Defendants CG Foods, Inc. and Guillon Enterprises, Inc. filed a special motion to strike the first amended complaint as a SLAPP suit. Defendants argued that Guillon’s challenged statements were protected under subdivision (e)(2) of section 425.16, the anti-SLAPP statute, because they are litigation activity. Defendants also argued that the statements are protected under subdivisions (e)(3) and (e)(4) of section 425.16 because Guillon made them in connection with a public issue. As pertinent here, defendants claim the statements concerned the issues of whether unlawful work activity occurred at Crush and whether Crush would close as a result of the lawsuit, matters that were of interest to Crush employees and the Ukiah community.

In October 2020, the court denied defendants’ special motion to strike. The court first found that the challenged statements did not fall under subdivisions (e)(3) and (e)(4) of section 425.16 because they did not involve a matter of public interest. The letter was published to Crush employees only, rather than to the general public, and it concerned “details of Plaintiffs’ experiences” that were not of public significance. “The fact that Guillon’s letter addressed issues that may have been of legitimate public concern—such as the closure of Crush restaurant—does not insulate his allegedly defamatory statements about Plaintiffs,” the court explained, since defendants did not show that the public was interested in plaintiffs’ veracity or whether the verdict caused the restaurant’s closure.

The court next found that Guillon did not make the statements in connection with a judicial proceeding under subdivision (e)(2) because there were no cases involving Crush pending at the time Biscocho published Guillon’s letter. Though the letter references a possible settlement of the employment action, the court concluded that the statements accusing plaintiffs of lying “ha[ve] little to do with” settling the case or collecting the judgment. The court also found that if the purpose of the letter was to inform Crush employees about the restaurant’s impending bankruptcy filing, Guillon’s statements alleging lying and criminal behavior were unnecessary.

Defendants CG Foods, Inc. and Guillon Enterprises, Inc. appeal from the order denying their anti-SLAPP motion.[3]

DISCUSSION

The anti-SLAPP statute allows a defendant to move for early dismissal of claims that are designed to chill the exercise of certain speech and petitioning activity protected by the state or federal constitution. (Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1568.) A claim based on a defendant’s constitutionally protected acts is subject to an anti-SLAPP motion to strike if the conduct is “in connection with a public issue.” (§ 425.16, subd. (b)(1).) Subdivision (e) of section 425.16 enumerates four categories of conduct deemed “in connection with a public issue.” (§ 425.16, subd. (e).) Defendants argue the second and fourth of these categories apply, as the defamation claim targets both statements “made in connection with an issue under consideration or review by a legislative, executive, or judicial body. . . .” (§ 425.16, subd. (e)(2)), and “conduct in furtherance of the exercise of [a] constitutional right . . . in connection with a public issue or an issue of public interest” (§ 425.16, subd. (e)(4).) Broadly worded subdivision (e)(4) is sometimes called the statute’s “catchall provision.” (FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 144 (FilmOn.com).)

We review de novo the denial of an anti-SLAPP motion. (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067.) In particular, “[w]e exercise independent judgment in determining whether, based on our own review of the record, the challenged claims arise from protected activity.” (Ibid.) The Legislature directs us to construe the anti-SLAPP statute broadly, so as to “encourage continued participation in matters of public significance.” (§ 425.16, subd. (a).) Where the anti-SLAPP statute applies, in that a defendant shows the challenged cause of action arises from activity the statute protects, a plaintiff must demonstrate a probability of prevailing on the claim to avoid its early dismissal. (Navallier v. Sletten (2002) 29 Cal.4th 82, 88.)

1. Subdivision (e)(4) of Section 425.16

Invoking the statute’s catchall provision, defendants contend Guillon’s allegedly defamatory statements concern public issues. In particular, they identify the issues of whether harassment and Labor Code violations occurred at Crush and the effect of the judgment in the first lawsuit on Crush’s reopening, issues they claim could affect Crush employees. Defendants also contend Crush’s closure was an issue of interest to the greater Ukiah community. What defendants ignore is that under section 425.16, subdivision (e)(4), it is not enough that speech in some manner relate to issues of public interest; defendants must show that the challenged statements “ ‘contribute to’ ” the public debate about those issues. (FilmOn.com, supra, 7 Cal.5th at p. 150.) We conclude, for the reasons discussed below, defendants have not made this showing.

1. FilmOn.com and Related Case Law

In FilmOn.com our high court construed the anti-SLAPP statute’s catchall provision, clarifying how the context of a challenged statement informs our analysis of whether it is “ ‘in connection with’ a public issue.” (FilmOn.com, supra, 7 Cal.5th at p. 140 [quoting § 425.16, subd. (e)(4)].) The case concerned an online tracking and “ ‘brand safety’ ” service that provided confidential reports to paying clients about websites on which the clients might advertise. (FilmOn.com, at p. 140.) When these reports tagged internet-based entertainment programming distributed by FilmOn.com as containing copyright infringement material and adult content, FilmOn.com filed trade libel and related claims against the brand safety service. (Id. at pp. 141–142.) The defendant service filed an anti-SLAPP motion to strike FilmOn.com’s claims arising from these allegedly inappropriate tags, arguing adult content and copyright infringement are issues of public interest under subdivision (e)(4) of section 425.16. (FilmOn.com, at p. 142.)

Although the Court agreed that copyright infringement and adult content are matters of widespread public interest, it nonetheless concluded the statements fell outside the protection of the anti-SLAPP statute. Focusing on the statutory requirement that a statement be made “ ‘in connection with’ ” a public issue, the Court explained that “ ‘the statement must in some manner itself contribute to the public debate.’ ” (FilmOn.com, supra, 7 Cal.5th at p. 150.) “ ‘[C]ontribut[ing] to the public debate’ ” means the defendant “participated in, or furthered, the [public] discourse that makes an issue one of public interest.” (Id. at pp. 150–151.) In the case before it, the Court concluded defendant had not shown its allegedly disparaging statements contributed to the debate on the asserted public issues. Instead, the statements were made in confidential reports used solely for business purposes. (Id. at p. 153.) Under those circumstances, the reports were “too remotely connected to the public conversation about [copyright infringement and adult film] to merit protection under the catchall provision.” (Id. at p. 140.)

The Court grounded its analysis in the Legislature’s purpose in enacting the anti-SLAPP statute, which was “ ‘to protect nonprofit corporations and common citizens “from large corporate entities and trade associations” in petitioning government.’ ” (FilmOn.com, supra, 7 Cal.5th at p. 143.) The “paradigmatic” SLAPP suit is brought by a well-funded developer against citizens who protest a local development proposal. (Ibid.) The Court concluded that, consistent with this purpose, the anti-SLAPP statute defines protected conduct by its content, as well as its context, including “its location, its audience, and its timing.” (Id. at pp. 143–144.)

Elaborating on this theme, the Court established a two-part inquiry to aid in determining whether allegedly wrongful conduct falls within the catchall provision of the anti-SLAPP statute. First, looking at the content of a challenged statement, courts must determine whether the statement implicates a public issue or an issue of public interest. (FilmOn.com, supra, 7 Cal.5th at pp. 150–151.) The Court cited with approval case law establishing three, non-exclusive categories of public interest: whether the speech concerned (1) a person or entity in the public eye, (2) conduct that could directly affect a large number of people beyond the direct participants, or (3) a topic of widespread public interest. (Id. at pp. 145–146 [citing Rivero v. American Federation of State, County, and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 924]; see also Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 621.)

Second, where an issue is of public interest, courts must consider the “functional relationship” between the challenged speech and public conversation about the matter. (FilmOn.com, supra, 7 Cal.5th at pp. 149–150.) “[W]e examine whether a defendant—through public or private speech or conduct—participated in, or furthered, the discourse that makes an issue one of public interest.” (Id. at p. 151.) At this stage of the analysis, we must consider context, including the identity of the speaker, the audience, and the apparent purpose of the speech. (Id. at pp. 142–144, 152.)

For example, where speech concerns a topic of widespread public interest, it may satisfy the FilmOn.com test if the defendant demonstrates that the speaker intended to express a position on the topic to the public. (See, e.g., Serova v. Sony Music Entertainment (2020) 44 Cal.App.5th 103, 122–123, review granted April 22, 2020, S260736 [statements about the identity of a singer on a Michael Jackson album protected by anti-SLAPP statute because the subject was of widespread interest among fans, the speech “communicated Appellants’ position on the issue,” and it was made “publicly to a sizeable audience”]; Ojjeh v. Brown (2019) 43 Cal.App.5th 1027, 1043–1044 [unfinished documentary film about Syrian refugee crisis protected because “intended for ‘the public sphere’ ”].)

Even statements concerning issues of interest to only a limited portion of the public may come within the catchall provision, where their purpose is to inform the audience’s exercise of its right to self-government. For example, in Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468 (Damon), a case cited favorably in FilmOn.com (supra, 7 Cal.5th at pp. 145–146), the former manager of a homeowners association brought a defamation action against members and directors of the association for articles in the association’s newsletter that criticized his performance as manager and urged residents to remain self-governed. (Damon, at pp. 471–473.) Observing that the allegedly defamatory statements were made in connection with board elections and recall campaigns, the court concluded the statements involved public issues, in part because the statements went to “fundamental choices regarding future management and leadership of the Association,” and homeowner association boards are similar to local governmental entities. (Id. at pp. 479–480.) Where, by contrast, allegedly defamatory statements are made as part of a private campaign to discredit another person, the statements are not in connection with an issue of public interest. (Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1135 (Weinberg); Woodhill Ventures, LLC v. Yang (2021) 68 Cal.App.5th 624, 631–632 (Woodhill Ventures).)

2. Application to this Case

The allegedly defamatory statements in Guillon’s April 3 letter do not pass the FilmOn.com standard for statements furthering free speech “in connection with a public issue or an issue of public interest.” (§ 425.16, subd.(e)(4).) First, we question whether the content of the challenged statements implicates a public issue. There is no evidence the plaintiffs are public figures, such that the “ ‘ “ ‘public has a legitimate interest in [their] doings, affairs or character.’ ” ’ ” (Hoang v. Tran (2021) 60 Cal.App.5th 513, 528.) Nor is there evidence that plaintiffs’ veracity and potential criminality were topics of widespread public interest at the time of the letter, or that the prevalence of unlawful employment practices at Crush was being widely discussed. And, although the issue of whether the restaurant would remain closed was of interest to Crush employees and the greater Ukiah community, that was not the subject of the allegedly defamatory statements. Other portions of Guillon’s letter addressed the judgment’s impact on Crush’s ability to reopen, but our focus must be on the challenged statements themselves, not on other statements made in the same letter. (See Chico Police Officers’ Assn. v. City of Chico (1991) 232 Cal.App.3d 635, 644–645.) Guillon’s statements accusing plaintiffs of perjury and potential criminality implicate only indirectly the issue of Crush’s continued closure. And even if this first part of the FilmOn.com standard were met, the second part decidedly is not.

Considering the speaker, audience, and forum for the allegedly defamatory statements, we have no trouble concluding Guillon’s statements did not contribute to any public debate about Crush’s reopening or labor relations at Crush. Nor was this their apparent purpose. Guillon addressed the April 3 letter to Crush employees and distributed it through a private messaging system designed to reach employees only, not the general public. And there is no asserted nexus between the statements in the letter and any decision this targeted audience was weighing. Unlike the homeowners association in Damon, there is no evidence that Crush is a self-governing or democratically controlled enterprise. (Cf. Damon, supra, 85 Cal.App.4th at pp. 479–480.) The issues of whether the restaurant would reopen and how it was to be managed were presumably for Guillon (and perhaps other owners or managers) to resolve, not a matter to be decided by the collective body of its employees. No, the contextual cues suggest a different motive for Guillon’s statements: that the real purpose for the allegedly defamatory statements was to seek retribution against plaintiffs for the first lawsuit.

Weinberg and Woodhill Ventures both involved statements made for similarly vindictive purposes—statements that fell outside the protection of the anti-SLAPP statute. In Weinberg, the parties were members of an association of token collectors. (Weinberg, supra, 110 Cal.App.4th at p. 1127.) The plaintiff sued for libel after the defendant communicated in writing and orally to other association members that the plaintiff had stolen his token. (Id. at pp. 1127–1129.) On appeal from denial of the defendant’s anti-SLAPP motion, the appellate court rejected the argument that these statements concerned an issue of public interest, reasoning that the defendant did not report his suspicions to authorities or otherwise “indicate an intent” to commence a criminal or civil proceeding. (Id. at pp. 1134–1135.) Instead, the defendant began a “private campaign” to discredit the plaintiff, and thus his accusations related to a private matter. (Id. at p. 1135.)

Woodhill Ventures similarly held that allegedly libelous statements were unprotected under the anti-SLAPP statute because their sole purpose was “to whip up a crowd for vengeful retribution.” (Woodhill Ventures, supra, 68 Cal.App.5th at pp. 632–633.) In that case, the defendant had ordered a mad-science themed birthday cake from the plaintiff for his son’s birthday party, and was unhappy when the cake arrived, decorated with icing formed into pills that looked too realistic. (Id. at p. 626–627.) The defendant made comments to his large social media following in which he accused the bakery of putting prescription pills on the cake, and the bakery sued for libel and slander. (Id. at pp. 628–629.) On appeal, the Woodhill Ventures court held that courts must scrutinize the purpose of challenged speech and refuse to extend anti-SLAPP protection to conduct that is merely an effort to gather ammunition for a private dispute. (Id. at p. 636.) Applying this principle, the court concluded defendant’s statements were insufficiently connected to the public issue of children mistaking pills for candy, finding instead that the statements related to a single transaction and defendant’s dissatisfaction with a cake. (Ibid.) The fact that defendant published his statements to a large audience did not make the statements worthy of protection, as they “were not part of a larger discussion” about the public issue of “ ‘candy confusion.’ ” (Id. at pp. 632, 636.)

The case before us is like Weinberg and Woodhill Ventures. Guillon’s challenged statements accuse private individuals of perjury and other criminal activity, yet there is no evidence that Guillon intended to involve the criminal justice system. Guillon made the statements to his own employees about a month after the court finalized the first lawsuit’s judgment, and in the same letter he blames the judgment for Crush’s financial problems. This context suggests Guillon was venting his anger and seeking to “whip up” Crush employees for retribution against plaintiffs and their lawyer. (Woodhill Ventures, supra, 68 Cal.App.5th at pp. 632–633.) He was not encouraging Crush employees or anyone else to participate in public issues. In coming to this conclusion, we express no view on the merits of plaintiffs’ defamation claim. We decide only that the challenged statements do not contribute to any public discussion and are therefore not entitled to the protection of the anti-SLAPP statute.

3. Du Charme and Defendants’ Other Cases

Resisting this conclusion, defendants contend Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107 (Du Charme) controls over FilmOn.com because the statements here are of interest to a “limited, but definable” portion of the public. (Du Charme, at p. 119.) In such cases, Du Charme holds that the 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.” (Ibid.)

We disagree with any suggestion that FilmOn.com’s two-part test applies only where speech concerns a topic of widespread public interest. Where Du Charme applies, in that the challenged speech is of interest to only a limited but definable portion of the public, courts must still evaluate the context of that speech to determine whether the speech advances a conversation on the topic of interest. We know this because FilmOn.com cites Du Charme as support for its conclusion that context matters when evaluating speech under the catchall provision, and because FilmOn.com itself involved statements directed to a limited and targeted audience, specifically, the brand safety service’s paying clients. (FilmOn.com, supra, 7 Cal.5th at pp. 145–146, 153.) We also note that Du Charme emphasizes the importance of context in assessing whether speech “warrants protection by a statute” designed to “encourag[e] participation in matters of public significance.” (Du Charme, supra, 110 Cal.App.4th at p. 119 [italics in original].) This emphasis on participation sounds like another way of phrasing FilmOn.com’s requirement that a statement “ ‘contribute to the public debate’ ” and “further[] the discourse that makes an issue one of public interest.” (FilmOn.com, at pp. 150, 151.)

In any event, a straight-forward application of Du Charme and its parent cases supports the conclusion that Guillon’s statements are not protected under the catchall provision of the anti-SLAPP statute. In Du Charme, the defendant union terminated the plaintiff from his position as an assistant business manager. (Du Charme, supra, 110 Cal.App.4th at p. 113.) The union then posted a statement on its web site stating it had terminated the plaintiff because of his “financial mismanagement” of union funds. The plaintiff sued the union for defamation, and the union brought an anti-SLAPP motion, which the trial court denied. (Ibid.) On appeal, the Du Charme court affirmed denial of the motion, having found no evidence that, at the time the union made its statement, there was any “ongoing” controversy, dispute, or discussion about the plaintiff’s termination. (Id. at p. 118.) Instead, the termination was by then a “fait accompli,” its propriety no longer at issue, and the statement called for no action on the part of union members. (Ibid.) “To grant protection to mere informational statements, in this context, would in no way further the statute’s purpose of encouraging participation in matters of public significance,” the court explained. (Ibid.)

Du Charme distinguished Damon, supra, 85 Cal.App.4th 468 and Macias v. Hartwell (1997) 55 Cal.App.4th 669, two other cases involving issues of interest to a limited but definable portion of the public. In Damon and Macias, unlike Du Charme, the challenged speech served the anti-SLAPP statute’s purpose of encouraging participation in an ongoing controversy, debate, or discussion, the court explained. (Du Charme, supra, 110 Cal.App.4th at p. 118.) In those two cases, “private conduct ‘affect[ed] a community [in the broad sense of the word] in a manner similar to that of a governmental entity.’ ” (Ibid.) The statements in Damon and Macias were “designed to persuade” members of a community to act on issues of interest to the community. (Ibid.) In Damon, these were the “fundamental choices” facing the homeowners association in its board elections and recall campaigns. (Damon, at pp. 471–473, 479–480.) In Macias, the statements concerned the qualifications of a candidate for president of a union representing 10,000 members. (Macias, at p. 671.) The Macias court held the statute protected such statements appearing on a political flyer. (Id. at pp. 672–674.)

This case is closer to Du Charme than to Damon and Macias. Guillon’s allegedly defamatory statements do not concern a community’s choices regarding governance or other issues that directly affect the community in a manner similar to that of a governmental entity. Unlike a union or a homeowners association, Crush is not governed by a vote of its employees, who have no authority to decide whether the restaurant should reopen or how it is managed. Moreover, the challenged statements concern the credibility of plaintiffs’ testimony in a lawsuit that was, by the time of the April 3 letter, a “fait accompli.” Under these circumstances, we cannot conclude that the challenged speech was “designed to persuade” Crush employees (or anyone else) to act on the asserted public issues.

The other cases on which defendants rely, Cross v. Cooper (2011) 197 Cal.App.4th 357 and Ruiz v. Harbor View Community Assn. (2005) 134 Cal.App.4th 1456 are also distinguishable. The speech in Cross concerned the location of a registered sex offender, information that allowed residents to take measures to protect themselves and their children. (Cross, at p. 383.) Cross is one of a line of cases where the challenged speech was “aimed at protecting members of the public” (Yang v. Tenet Healthcare, Inc., (2020) 48 Cal.App.5th 939, 949), but defendants nowhere argue that Guillon’s statements were aimed at, or had the effect of, protecting his employees. And Ruiz, like Damon, involved speech affecting the governance of a homeowners association (Ruiz, at pp. 1468–1470), raising issues of democratic control that find no parallel in the facts of this case.

In sum, whether analyzed through the prism of FilmOn.com or the appellate authority on which defendants rely, Guillon’s allegedly defamatory statements are not protected by the catchall provision of the anti-SLAPP statute.

2. Subdivision (e)(2) of section 425.16

Defendants next argue that the challenged statements are protected under subdivision (e)(2) of section 425.16 because Guillon made the statements in the context of ongoing enforcement proceedings, namely a notice of levy in the employment action.

The anti-SLAPP statute protects statements “made in connection with an issue under consideration or review by a . . . judicial body.” (§ 425.16, subd. (e)(2).) A statement is “in connection with” litigation if it relates to the “substantive issues” in the litigation and is directed to those that have some interest in the litigation. (Seltzer v. Barnes (2010) 182 Cal.App.4th 953, 962.) The challenged speech “must be aimed at achieving the objects of the litigation.” (See Anderson v. Geist (2015) 236 Cal.App.4th 79, 89.)

The allegedly defamatory statements in the April 3 letter meet none of these criteria. The statements were not directed to persons who have an interest in the judgment enforcement proceedings, but to Crush employees. They do not relate to any substantive issues in the judgment enforcement proceedings, since plaintiffs’ veracity and potential criminality are irrelevant to the enforcement of the judgment already obtained. And, contrary to defendants’ assertion, the fact that plaintiffs’ counsel delivered a notice of levy to Crush’s bank on the same day Biscocho published the April 3 letter does not establish that Guillon made the challenged statements with the intent to “achiev[e] the objects of the litigation.” Guillon’s letter does not mention a notice of levy, and there is no evidence that Guillon was even aware of the notice of levy at that time.

Though the April 3 letter references Guillon’s request that plaintiffs remove the judgment, defendants have not connected this request to any issue under consideration or review by the court. (See Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1049 [a matter under review or consideration is one subject to an examination or given “ ‘attentive thought’ ”].) Guillon’s statements seem designed to whip up an online mob in the hopes it will cow Crush’s creditors into taking only partial payment on the judgment. But intimidating creditors—judgment or otherwise—relates to no substantive issue in the enforcement litigation. And to the extent Guillon seeks to achieve his object in the litigation in this manner, his statements are manifestly not protected by section 425.16, subdivision (e)(2).

Defendants have thus failed to meet their burden to show that plaintiffs’ defamation claim arises from conduct protected by the anti-SLAPP statute. We accordingly need not reach the question of whether plaintiffs demonstrate a probability of prevailing in the defamation action.[4] The trial court did not err in denying defendants’ special motion to strike; it properly recognized that Guillon was waging a private war against plaintiffs, not contributing to a discussion of matters of public significance.

DISPOSITION

The order denying defendants’ anti-SLAPP motion under section 425.16 is affirmed. Plaintiffs are awarded costs on appeal.

TUCHER, P.J.

WE CONCUR:

FUJISAKI, J.

PETROU, J.

Lawler et al. v. Guillon Enterprises, Inc., et al. (A161674)

[1] “SLAPP” stands for “strategic lawsuit against public participation.” (Code Civ. Proc., § 425.18.) All statutory references are to the Code of Civil Procedure unless otherwise specified.

[2] Plaintiffs’ initial complaint named seven defendants, but their first amended complaint omitted three of the original defendants, leaving only these four defendants.

[3] Guillon, Inc. and Guillon, Inc. Construction also brought an anti-SLAPP motion, which the court also denied, but those parties did not appeal that ruling.

[4] The parties request judicial notice of documents pertaining to this prong of the anti-SLAPP analysis. Because we do not reach the second prong, we deny their requests. (See Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 544, fn. 4.)