Filed 10/3/18 S.A.M. Moving, Inc. v. Alexander’s Mobility Services CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Walter P. Schwarm, Judge. Affirmed.

Carothers Disante & Freudenberger, Marie D. Disante and Steven A. Micheli for Defendant and Appellant.

No appearance for plaintiff and Respondent.

INTRODUCTION

S.A.M. Moving, Inc., (S.A.M.) sued a competitor, Alexander’s Mobility Services (Alexander’s), for slander, trade libel, and breach of contract after Alexander’s allegedly bad-mouthed S.A.M. to potential customers. One such potential customer was the City of Los Angeles. Alexander’s moved to strike the causes of action for slander and trade libel under Code of Civil Procedure section 425.16, the anti-SLAPP statute, on the grounds that the statements made to the City of Los Angeles furthered Alexander’s constitutional right of free speech in connection with a public issue or an issue of public interest.[1]

The trial court denied Alexander’s anti-SLAPP motion because Alexander’s failed to carry its burden of showing that the causes of action arose from protected activity. We affirm. The conduct alleged in S.A.M.’s first cause of action has no connection with a public issue or an issue of public interest. The first cause of action alleges a purely private dispute over private matters between private parties.

FACTS

S.A.M.’s business is moving commercial furniture. Although Alexander’s is a competitor, the two companies occasionally helped each other out if a job was too big for one of them. They last worked together in 2015.

After the 2015 job, a dispute arose between S.A.M. and Alexander’s. S.A.M. alleged that Alexander’s began calling “former clients who always used [S.A.M.] for moving services” and slandering S.A.M. The subject of the slander was S.A.M.’s “insurance, status, and they [i.e., Alexander’s] were disclosing financial records, and were accusing [S.A.M.’s] personnel of stealing [Alexander’s] moving equipment.” This slander allegedly “caused long existing clients not to call [S.A.M.] for moving services.” “One specific job was the City of Los Angeles moving 200 employees within the Downtown Los Angeles area. A job of that size and nature would have generated $400,000 in gross income to [S.A.M.].”

S.A.M. sued Alexander’s for trade libel, slander, and breach of written contract.[2] Alexander’s moved to strike the causes of action for trade libel and slander, asserting that statements made in the first cause of action qualified as protected activity under section 425.16, subdivision (e)(4), because they alleged “. . . 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.” Specifically, Alexander’s claimed the allegation regarding the potential job with the City of Los Angeles implicated its right of free speech in connection with a public issue or an issue of public interest.

The trial court denied the motion on the ground that the statements alleged were not connected with a public issue or an issue of public interest. Instead, they pertained to a private matter in which the public could have, at best, only a “‘broad and amorphous’ interest.” Accordingly, S.A.M. had not carried its burden to show activity protected by the anti-SLAPP statute.

DISCUSSION

“A SLAPP suit is ‘a meritless suit filed primarily to chill the defendant’s exercise of First Amendment rights.’ [Citations.]” (Finton Construction, Inc. v. Bidna & Keys, APLC (2015) 238 Cal.App.4th 200, 208 (Finton).) The anti-SLAPP statute was enacted to allow defendants to obtain dismissal of meritless lawsuits designed to chill their free speech rights at the earliest stage. (Id. at p. 209.)

Trial courts evaluate anti-SLAPP motions using 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. (§ 425.16, subd. (b)(1).)”‘ [Citation.] If that requirement is met, the court then proceeds to the second step to determine whether the plaintiff has demonstrated a probability of prevailing on the claim. [Citation.]” (Finton, supra, 238 Cal.App.4th at p. 209.) A cause of action must arise from protected activity and lack minimal merit in order to be stricken pursuant to an anti-SLAPP motion. (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.)

“‘As courts applying the anti-SLAPP statute have recognized, the “arising from” requirement is not always easily met. [Citations.]’ [Citation.] A claim does not arise from constitutionally protected activity simply because it is triggered by such activity or is filed after it occurs. [Citation.] Rather, the focus is on the substance of the lawsuit. ‘[T]he critical point is whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech. [Citations.]’ [Citation.] . . . .” (World Financial Group, Inc. v. HBW Ins. & Financial Services, Inc. (2009) 172 Cal.App.4th 1561, 1568-1569.) The trial court looks at the pleadings and the supporting and opposing evidence to make this determination. (§ 425.16, subd. (b)(2).)

Our review of an order granting or denying an anti-SLAPP motion is de novo. Like the trial court, we use a two-step process, and we consult the pleadings and the evidence submitted to support or oppose the motion. (Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1056-1057.)

The substance of S.A.M.’s first cause of action against Alexander’s is a private business dispute; a company’s representatives allegedly said bad (and false) things about a competitor to the competitor’s potential customers. These bad things do not involve any public issue or issue of public interest. They are, according to S.A.M.’s complaint, statements about S.A.M.’s insurance and about the theft of Alexander’s equipment by S.A.M. employees. The fact that one potential customer was the City of Los Angeles does not transform this dispute into one that implicates the public interest. (See Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1135 (Weinberg) [private campaign to discredit plaintiff to small group of people not protected activity].)

Unquestionably anti-SLAPP motions can involve commercial disputes. (See, e.g., ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993; DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562.) But even in the commercial context, the conduct alleged must be protected activity as defined in the statute. As the court stated in Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, a public issue (a) “concerned a person or entity in the public eye,” (b) involved “conduct that could directly affect a large number of people beyond the direct participants,” or (c) concerned “a topic of widespread, public interest.” (Id. at p. 924.) The court in Weinberg, supra, 110 Cal.App.4th 1122, observed that an issue of public interest “should be something of concern to a substantial number of people,” not to a “relatively small, specific audience[.]” There must be “some degree of closeness between the challenged statements and the asserted public interest,” and “the assertion of a broad and amorphous public interest is not sufficient[.]” (Id. at p. 1132.)

Alexander’s presented no evidence that either it or S.A.M. is an entity in the public eye, or that a large number of people beyond the direct participants would be affected by hiring a company to move commercial furniture, or that awarding contracts to move commercial furniture is a topic of widespread public interest.[3] There was no evidence that hiring a company to move commercial furniture, even by public entities, is of concern to a substantial number of people, rather than a relatively small, specific audience, or that there was any degree of closeness between the challenged statements (insurance, theft of equipment) and the asserted public interest. Alexander’s argues that 200 City of Los Angeles employees were involved and that this constitutes a “large number of people.” But S.A.M. and Alexander’s move furniture, not people. There was no evidence that the employees who were moved had any involvement at all with the moving company or its selection.

Alexander’s heavy reliance on Industrial Waste & Debris Box Service, Inc. v. Murphy (2016) 4 Cal.App.5th 1135 (Industrial Waste) is misplaced. The statements in Industrial Waste involved trash hauling and recycling, both of which activities are heavily regulated on both state and local levels. More specifically, the statements that were the subject of the lawsuit questioned whether a company with a franchise to recycle trash �" itself a significant public issue �" was meeting statutorily mandated goals and complying with the terms of its contract with government agencies. Under these circumstances, the reviewing court had no trouble in classifying the speech as connected with a public issue or issue of public concern. (Id. at pp. 1148-1149.)

No comparable circumstances exist in this case. Moving furniture is not subject to heavy statutory regulation, and moving companies are typically hired for individual projects. There does not appear to be an ongoing license or franchise to move furniture here. S.A.M. did not allege it had an actual contract with the City of Los Angeles, only that it could have been considered for the job, based on past employment.

We should also point out that S.A.M.’s causes of action for slander and trade libel are not wholly based on the possible loss of a potential job from the City of Los Angeles. This was simply an example of the kind of harm Alexander’s allegedly false statements had caused. If the two sentences relating to the City of Los Angeles were eliminated, the remaining allegations of false statements regarding insurance, status, and stealing Alexander’s equipment would be unaffected. This reinforces the trial court’s perception that the allegations of the first cause of action related only to a private dispute, not to a public issue or an issue of public interest.

DISPOSITION

The order denying the anti-SLAPP motion is affirmed. Respondent is to recover its costs on appeal.

BEDSWORTH, J.

WE CONCUR:

O’LEARY, P. J.

FYBEL, J.