Filed 9/28/17 Marien v. Kuczewski CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEALS from orders of the Superior Court of San Diego County, Joel M. Pressman, Judge. Affirmed.

Shewry & Saldana and Christopher C. Saldana for Plaintiffs, Cross-defendants and

Appellants Robin Marien, Gabriel Jebb and Air California Adventure, Inc.

Law Office of Chad Morgan and Chad D. Morgan for Defendant, Cross-

complainant and Appellant Robert Michael Kuczewski.

Plaintiffs Robin Marien, Gabriel Jebb, and Air California Adventure, Inc. (ACA) (together Plaintiffs) filed a first amended complaint alleging defamation and other causes of action against defendant Robert Michael Kuczewski arising out of, inter alia, his alleged false statements regarding their operation of the Torrey Pines Gliderport (TPG). The trial court denied Kuczewski's motion to strike that complaint under Code of Civil Procedure section 425.16,[1] the anti-SLAPP (strategic lawsuit against public participation) statute. Kuczewski appeals the order denying his motion.

Kuczewski filed a first amended cross-complaint alleging false arrest and imprisonment and other causes of action against Plaintiffs. The court denied Plaintiffs' anti-SLAPP motion to strike two of his false arrest and imprisonment causes of action under section 425.16. Plaintiffs appeal the order denying their motion.

Based on our reasoning below, we conclude the court correctly denied the parties' respective anti-SLAPP motions.

FACTUAL AND PROCEDURAL BACKGROUND[2]

In July 2015, Plaintiffs filed their instant first amended complaint (FAC) alleging

33 causes of action against Kuczewski, including 27 causes of action for defamation.[3] The FAC alleged that the TPG is located within the City of San Diego's Torrey Pines City Park and is used as a launching and landing space for hang gliding and paragliding. Marien first became acquainted with Kuczewski over seven years earlier when David Jebb, Gabriel Jebb's father, was the principal shareholder of ACA, which held the lease and concession for the TPG. The TPG concessionaire is responsible for, inter alia, acting as the flight director for hang gliding and paragliding activities on the premises. While David Jebb was ACA's principal shareholder, Kuczewski, for unknown reasons, routinely screamed at, and/or otherwise harassed, David Jebb, his family, ACA employees, and ACA students in the restricted area of the TPG where pilots and tandem passengers were actively engaged in hang gliding or paragliding. As a result, David Jebb banned him from the TPG.

In or about 2008, Marien became the principal shareholder of ACA and lifted Kuczewski's ban from the TPG. Gabriel Jebb (Jebb) is an employee of ACA and works at the TPG as a tandem instructor. Over the past several years, Kuczewski resumed and elevated his vitriolic conduct by confronting and harassing ACA employees and customers and making video recordings of Marien, Jebb, and other ACA employees while they performed their job duties. He posted those video recordings, which purportedly show ordinance or rule violations, on various websites, including one (i.e., www.ushawks.org) that he apparently originated and controls. He also posted on various websites video recordings of his statements made before the City of San Diego City Council meetings criticizing Plaintiffs and their management of the TPG.[4] The FAC alleged that Kuczewski sought to convince the City Council to reinstate an advisory board to provide oversight of Plaintiffs and the TPG, which board he presumably would control, and thereby he would control the TPG's flight operations and ACA's business. It also alleged Kuczewski solicited financing to take over the TPG concession when the City of San Diego issues another request for proposal to bid for that concession, thereby showing his true motivation is to take the TPG concession away from ACA. The FAC alleged the ultimate goal of Kuczewski's defamatory statements and other actions were to damage Plaintiffs, cause the City of San Diego to remove ACA as the TPG's concessionaire, and obtain the TPG concession for himself and/or his hang gliding club (i.e., U.S. Hawks).

The FAC described a November 9, 2014, incident during which Kuczewski yelled at Jebb for not wearing a helmet to "kite" while instructing students.[5] Kuczewski refused Jebb's request that he move out of the TPG's restricted area to ensure the safety of the hang gliders and paragliders then using that area. Plaintiffs then called the police to have Kuczewski arrested for trespassing and removed from the premises. Also, on or about November 9, 2014, ACA and Marien revoked Kuczewski's privileges to fly at, and otherwise use the facilities of, the TPG for a period of one year.

The predominant theme of the FAC's allegations is that Kuczewski made defamatory statements asserting that Plaintiffs bullied people at the TPG, although the exact nature or circumstances of such alleged bullying is oftentimes unclear in the FAC.[6] Kuczewski's other alleged defamatory statements include assertions that Plaintiffs are thugs and corrupt, and may be responsible, in part, for the suicide of a woman who had been bullied at the TPG.

Kuczewski filed a motion to strike the FAC pursuant to section 425.16, arguing that each of the FAC's causes of action arose from his exercise of his right to free speech, his statements concerned public issues, and Plaintiffs could not show a probability they would prevail on the merits of the case. Plaintiffs opposed the motion, arguing Kuczewski had not shown their causes of action arose out of his exercise of his right to free speech in connection with a public issue (i.e., § 425.16 protected conduct) and, in any event, they showed there was a probability they would prevail on the merits of each of the FAC's causes of action.

In October 2015, Kuczewski filed his instant first amended cross-complaint, alleging, inter alia, causes of action against Plaintiffs for false arrest and imprisonment. Plaintiffs filed a section 425.16 motion to strike the fifth and sixth causes of action of Kuczewski's first amended cross-complaint, which alleged false arrests and imprisonments, arguing those causes of action arose out of their exercise of their right to free speech (i.e., communications with police) and he could not show a probability he would prevail on the merits of those causes of action. Kuczewski opposed the motion, arguing section 425.16 does not protect Plaintiffs' conduct in making citizen's arrests and, in any event, he showed there was a probability he would succeed on the merits of those causes of action.

On January 8, 2016, the trial court issued a minute order denying both section 425.16 motions. In denying Kuczewski's motion to strike the FAC, the court stated:

"Assuming that the allegations fall within protected activity under

. . . [section] 425.16[, subd.] (e) as [Kuczewski] avers, the Court finds that [P]laintiffs have . . . established [a] probability of prevailing on the claims. [Citation.] The allegations in this case are not based upon publications made while [Kuczewski] appeal[ed] [to] the City Council[.] Instead, the allegations are based upon internet and other publications of factual assertions involving [Kuczewski].

. . . The evidence shows that [Kuczewski] made allegations of fact that [P]laintiffs assert are false. [Citation.] . . . ."

In denying Plaintiffs' motion to strike the fifth and sixth causes of action of Kuczewski's first amended cross-complaint, the court stated in part: "The Fifth and Sixth Causes of Action involve three arrests: November 9, 2014; March 8, 2015; and July 12, 2015. The operative complaint alleges that each of these arrests were citizen's arrests [citation]." Kuczewski timely filed a notice of appeal challenging the order denying his section 425.16 motion and Plaintiffs timely filed a notice of cross-appeal challenging the order denying their section 425.16 motion.

DISCUSSION

I

Anti-SLAPP Motions Generally

A SLAPP "is a civil lawsuit that is aimed at preventing citizens from exercising their political rights or punishing those who have done so. ' "While SLAPP suits masquerade as ordinary lawsuits such as defamation and interference with prospective economic advantage, they are generally meritless suits brought primarily to chill the exercise of free speech or petition rights by the threat of severe economic sanctions against the defendant, and not to vindicate a legally cognizable right." ' " (Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21.) Section 425.16, the anti-SLAPP statute, "was enacted in 1992 for the purpose of providing an efficient procedural mechanism to obtain an early and inexpensive dismissal of nonmeritorious claims 'arising from any act' of the defendant 'in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue . . . .' (§ 425.16, subd. (b)(1).)" (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 186.)

Section 425.16, subdivision (b)(1), provides:

"A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (Italics added.)

A two-step process applies in deciding an anti-SLAPP motion. "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).) 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) 29 Cal.4th 53, 67 (Equilon).) "Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute." (Navellier v. Sletten (2002) 29 Cal.4th 82, 89 (Navellier).)

Under the first step, the defendant has the initial burden to show that the claims arose from his or her protected activity. (Equilon, supra, 29 Cal.4th at p. 67.) In deciding whether the defendant has met that burden, a court considers "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." (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78, italics added.) The court's focus is not the form of the cause of action or claim, "but, rather, the defendant's activity that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning." (Navellier, supra, 29 Cal.4th at p. 92.) "The Legislature spelled out the kinds of activity it meant to protect in section 425.16, subdivision (e): 'As used in this section, "act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue" includes: (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.' " (City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 422.)

"Because of these specifications, courts determining whether a cause of action arises from protected activity are not required to wrestle with difficult questions of constitutional law, including distinctions between federal and state protection of free expression. 'The only means specified in section 425.16 by which a moving defendant can satisfy the requirement is to demonstrate that the defendant's conduct . . . falls within one of the four categories described in subdivision (e), defining subdivision (b)'s phrase, "act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue." ' " (City of Montebello v. Vasquez, supra, 1 Cal.5th at p. 422.) Thus, "courts determining whether conduct is protected under the anti-SLAPP statute look not to First Amendment law, but to the statutory definitions in section 425.16, subdivision (e)." (Ibid.)

The California Supreme Court recently clarified the applicability of the anti-SLAPP statute to mixed causes of action. (Baral v. Schnitt (2016) 1 Cal.5th 376, 392-396 (Baral).) Baral stated: "[A]n anti-SLAPP motion, like a conventional motion to strike, may be used to attack parts of a count as pleaded." (Id. at p. 393.) Accordingly, "courts may rule on plaintiffs' specific claims of protected activity, rather than reward artful pleading by ignoring such claims if they are mixed with assertions of unprotected activity." (Ibid.) Construing the anti-SLAPP statute's use of the term "cause of action" to mean a claim arising from protected activity, Baral stated:

"When the Legislature declared that a 'cause of action' arising from activity furthering the rights of petition or free speech may be stricken unless the plaintiff establishes a probability of prevailing, it had in mind allegations of protected activity that are asserted as grounds for relief. The targeted claim must amount to a 'cause of action' in the sense that it is alleged to justify a remedy. By referring to a 'cause of action against a person arising from any act of that person in furtherance of' the protected rights of petition and speech, the Legislature indicated that particular alleged acts giving rise to a claim for relief may be the object of an anti-SLAPP motion. (§ 425.16, subd. (b)(1) . . . .) Thus, in cases involving allegations of both protected and unprotected activity, the plaintiff is required to establish a probability of prevailing on any claim for relief based on allegations of protected activity. Unless the plaintiff can do so, the claim and its corresponding allegations must be stricken." (Baral, supra, 1 Cal.5th at p. 395.)

"To avoid confusion," Baral referred to "the proper subject of a special motion to strike as a 'claim,' a term that also appears in section 425.16[, subd.] (b)(1)." (Baral, supra, 1 Cal.5th at p. 382.)

Baral also clarified, however, that "[a]ssertions [involving protected conduct] that are 'merely incidental' or 'collateral' are not subject to section 425.16." (Baral, supra, 1 Cal.5th at p. 394.) In discussing protected acts that are incidental to the plaintiff's claims for relief, Baral cited Wallace v. McCubbin (2011) 196 Cal.App.4th 1169, in which the court stated at page 1183: "For purposes of anti-SLAPP analysis, . . . an alleged act is incidental to a claim, and incidental to any unprotected activity on which the claim is based, only if the act is not alleged to be the basis for liability." (Baral, at p. 394.) Wallace, in turn, cited Scott v. Metabolife Internat., Inc. (2004) 115 Cal.App.4th 404, at pages 414 to 417, in which the court concluded that the defendant's advertising conduct was merely incidental to its manufacturing and sales conduct that was the basis for plaintiff's claims for relief. (Wallace, at p. 1183; see also Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 672 [protected conduct that is merely incidental to unprotected conduct is not subject to anti-SLAPP statute]; Gallimore v. State Farm Fire & Casualty Ins. Co. (2002) 102 Cal.App.4th 1388, 1399 [anti-SLAPP statute does not apply when defendant's alleged protected conduct is merely evidence supporting plaintiff's claims for relief and does not constitute the alleged wrongful conduct itself].) Baral further noted that "[a]llegations of protected activity that merely provide context, without supporting a claim for recovery, cannot be stricken under the anti-SLAPP statute." (Baral, at p. 394.) Thus, at the first step of the anti-SLAPP analysis, a court determines whether a complaint's allegations of protected conduct are the basis for a claim for relief or, instead, are incidental or collateral to, or merely provide context for, a claim for relief based on unprotected conduct.

On appeal from an order denying an anti-SLAPP motion, "[w]e independently review the record to determine whether the asserted causes of action arise from the defendant's free speech or petitioning activity, and, if so, whether the plaintiff has shown a probability of prevailing." (City of Alhambra v. D'Ausilio (2011) 193 Cal.App.4th 1301, 1306-1307.)

KUCZEWSKI'S APPEAL

II

Denial of Kuczewski's Section 425.16 Motion to Strike the FAC

Kuczewski contends the trial court erred by denying his section 425.16 motion to strike the FAC. He asserts he met his burden under the first step of the anti-SLAPP analysis to show the FAC's causes of action arose out of conduct protected by section 425.16 and Plaintiffs did not meet their burden under the second step to show there was a probability they would prevail on the merits of those causes of action. In particular, he asserts his alleged defamatory statements and other alleged actions were made in connection with a public issue or an issue of public interest within the meaning of section

425.16, subdivision (e)(3) or (4).[7]

A. Issue of Public Interest Generally

Section 425.16, subdivision (e)(3) and (4) define acts made "in connection with a public issue" that are protected by the anti-SLAPP statute as including statements made in connection with "an issue of public interest." "The definition of 'public interest' within the meaning of the anti-SLAPP statute has been broadly construed 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." (Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479.) "Although matters of public interest include legislative and governmental activities, they may also include activities that involve private persons and entities, especially when a large, powerful organization may impact the lives of many individuals." (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 650.)

Section 425.16 "does not provide a definition for 'an issue of public interest,' and it is doubtful an all-encompassing definition could be provided. However, the statute requires that there be some attributes of the issue which make it one of public, rather than merely private, interest. A few guiding principles may be derived from decisional authorities. First, 'public interest' does not equate with mere curiosity. [Citations.] Second, a matter of public interest should be something of concern to a substantial number of people. [Citation.] Thus, a matter of concern to the speaker and a relatively small, specific audience is not a matter of public interest. [Citations.] Third, there should be some degree of closeness between the challenged statements and the asserted public interest [citation]; the assertion of a broad and amorphous public interest is not sufficient [citation]. Fourth, the focus of the speaker's conduct should be the public interest rather than a mere effort 'to gather ammunition for another round of [private] controversy . . . .' [Citation.] Finally, 'those charged with defamation cannot, by their own conduct, create their own defense by making the claimant a public figure.' [Citation.] A person cannot turn otherwise private information into a matter of public interest simply by communicating it to a large number of people." (Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1132-1133.)

Cases that have addressed the question of whether alleged wrongful statements were made in connection with a public issue or an issue of public interest have focused on whether those statements "either concerned a person or entity in the public eye [citations], conduct that could directly affect a large number of people beyond the direct participants [citations] or a topic of widespread, public interest [citation]." (Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 924 (Rivero).) On the latter factor, "it is not enough that the statement refer to a subject of widespread public interest; the statement must in some manner itself contribute to the public debate." (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 898.) For example, comments on the business practices of a plaintiff that is not in the public eye and do not affect a large number of people, are not a topic of widespread public interest. (Ibid.) However, consumer information that affects a large number of persons is generally viewed as information concerning a matter of public interest. (Ibid.)

Furthermore, "in order to satisfy the public issue/issue of public interest requirement of section 425.16, subdivision (e)(3) and (4) of the anti-SLAPP statute, 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 v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107, 119, fn. omitted.)

B. No Public Issue or Issue of Public Interest in This Case.

Contrary to Kuczewski's assertion, we conclude none of his 33 causes of action alleged in the FAC arise out of any statements or other conduct in connection with any public issue or issue of public interest within the meaning of section 425.16, subdivision (e)(3) or (4). Without specifically addressing the allegations in each of the 33 causes of action set forth in the 112-page FAC, we conclude that, to the extent the FAC's causes of action are based on Kuczewski's statements about Plaintiffs (e.g., defamation causes of action), those statements involved, at most, a private controversy or dispute between Plaintiffs and Kuczewski and not any public issue or issue of public interest.[8] First, none of the Plaintiffs were in the public eye. (Rivero, supra, 105 Cal.App.4th at p. 924.) Neither the fact that ACA was the TPG's concessionaire nor the fact that Marien acted as its flight director made Plaintiffs public figures or otherwise placed them in the public eye and Kuczewski's website postings alone could not place them in the public eye for anti-SLAPP purposes. (Weinberg v. Feisel, supra, 110 Cal.App.4th at p. 1133 [defendants cannot, by their own conduct, create their own defense to defamation causes of action by making plaintiff a public figure].)

Second, the FAC's allegations do not support Kuczewski's apparent assertion that his alleged wrongful statements directly affected a large number of people beyond the direct participants. (Rivero, supra, 105 Cal.App.4th at p. 924.) Rather, because his statements related primarily to, or arose out of, incidents involving Plaintiffs and Kuczewski and/or a few of his hang gliding acquaintances, they did not directly affect a large number of people. Although Kuczewski's website postings of his statements presumably made them potentially accessible by a large number of people, that potential accessibility does not, by itself, show his statements directly affected a large number of people. (Weinberg v. Feisel, supra, 110 Cal.App.4th at p. 1133 [defendants cannot turn otherwise private information into a matter of public interest simply by communicating it to a large number of people].) The FAC does not allege that Kuczewski's website statements were viewed by thousands of persons or that such statements directly affected those viewers. "[A] matter of concern to the speaker and a relatively small, specific audience is not a matter of public interest." (Id. at p. 1132.) In this case, there is nothing alleged in the FAC showing Kuczewski's dispute with Plaintiffs regarding their operation of the TPG was a matter of concern to persons other than Kuczewski and the presumably small number of hang gliders in his U.S. Hawks hang gliding organization and/or those persons directly interested in his website postings regarding Plaintiffs. (Cf. Weinberg, at pp. 1135-1136 [defendant's publication of defamatory statements accusing plaintiff of criminal conduct to relatively small group of about 700 fellow token collectors was a private matter furthering defendant's campaign to discredit plaintiff and did not involve a matter of public interest].)

Third, contrary to Kuczewski's assertion, his alleged wrongful statements did not involve a topic of widespread, public interest, but instead involved a private controversy or dispute between Plaintiffs and him. Although, as he argues, his alleged statements and incidents underlying them relate to Plaintiffs' operation of the TPG, which is part of a public park, and ACA's rent-free lease of the TPG premises from the City of San Diego, those circumstances do not necessarily show his statements involved a topic of widespread, public interest. His alleged statements show he is highly critical of the manner in which Plaintiffs operate the TPG. However, there is nothing in the FAC's allegations showing that criticism has become a topic of widespread, public interest. Although Kuczewski regularly spoke at City Council meetings regarding incidents that occurred at the TPG and Plaintiffs' purported mismanagement of its operations and he subsequently posted video recordings of those statements, none of his statements at those meetings apparently were made during the City Council's agenda items, but instead were made during the period for comments by the general public on non-agenda issues. Neither Kuczewski's statements at City Council meetings regarding the operations of the TPG nor his subsequent posting of video recordings of those statements made his statements topics of widespread, public interest. (Rivero, supra, 105 Cal.App.4th at p. 924; Donovan v. Dan Murphy Foundation (2012) 204 Cal.App.4th 1500, 1508-1509 [removal of member of foundation's board of directors did not involve an issue of public interest even though foundation was one of largest charitable organizations in Southern California and its donations to person and entities affected millions of persons].) Furthermore, there is an insufficient degree of closeness between Kuczewski's alleged defamatory statements and any purported public interest. (Weinberg v. Feisel, supra, 110 Cal.App.4th at p. 1132.) Based on our reading of the FAC's allegations, the focus of Kuczewski's alleged statements was to further his private dispute with Plaintiffs and possibly obtain the TPG concession for himself and/or members of his U.S. Hawks organization; it was not to further the public interest. (Id. at pp. 1132-1133.) Accordingly, we conclude Kuczewski's alleged defamatory statements were mere comments and/or criticism of Plaintiffs' operation of the TPG and other business practices, which statements arose out of a private controversy or dispute or private interest and were not made in connection with any public issue or issue of public interest. (Cf. Wilbanks v. Wolk, supra, 121 Cal.App.4th at p. 898 [defendant's comments on plaintiffs' business practices did not affect a large number of people and was not a topic of widespread public interest].)

To the extent Kuczewski asserts that some of his alleged statements were made in connection with issues of public interest because they constituted consumer information affecting a large number of people, we conclude the premise of that assertion is faulty. Although he allegedly made statements, inter alia, referring to Plaintiffs' bullying of people at the TPG and various accidents occurring there, any consumer information conveyed by those statements was insignificant and merely incidental to the underlying private purpose of those statements as alleged in the FAC (i.e., to further Kuczewski's private dispute with Plaintiffs and/or to obtain the concession for the TPG for himself and/or members of his U.S. Hawks organization). To the extent the FAC alleged Kuczewski made any statements conveying consumer information, those purported protected statements were merely incidental or collateral to Plaintiffs' claims for relief based on his statements and other conduct that was not protected by section 425.16. (Cf. Baral, supra, 1 Cal.5th at p. 394 [assertions involving protected conduct that are merely incidental or collateral are not subject to section 425.16].)

C

We also reject Kuczewski's alternative assertion that his alleged defamatory statements were made "before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law" within the meaning of section 425.16, subdivision (e)(1), or "in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law" within the meaning of section 425.16, subdivision (e)(2). Although many of his alleged defamatory statements were made during the non-agenda public comment portion of City Council meetings, the FAC clearly alleged that Plaintiffs do not base their claims for relief on his speech or other conduct during City Council meetings, but rather on his conduct thereafter (e.g., posting those statements on websites after City Council meetings).[9] Kuczewski does not cite, and we are unaware of, any case that holds defamatory statements are forever protected by the anti-SLAPP statute if they are initially made before a legislative body (e.g., City Council) and thereafter repeated, or "re-published," by their declarants to persons outside of a legislative or other official proceeding (e.g., on websites). Because we cannot conclude the Legislature intended section 425.16 to apply in that manner, we reject Kuczewski's apparent assertion to that section 425.16, subdivision (e)(1) or (2) applies to protect his alleged defamatory statements.

Because Kuczewski did not carry his burden under the first step of the anti-SLAPP analysis to show the FAC's causes of action arose out of conduct protected by section 425.16, we need not, and do not, address the question of whether Plaintiffs met their burden under the second step of the anti-SLAPP analysis (i.e., to show there is a probability they will prevail on the merits of their causes of action). Accordingly, the trial court correctly denied Kuczewski's section 425.16 motion to strike the FAC.

PLAINTIFFS' CROSS-APPEAL

III

Denial of Plaintiffs' Section 425.16 Motion to Strike the

Fifth and Sixth Causes of Action of Kuczewski's First Amended Cross-complaint

Plaintiffs contend the trial court erred by denying their section 425.16 motion to strike the fifth and sixth causes of action of Kuczewski's first amended cross-complaint. Plaintiffs assert they met their burden under the first step of the anti-SLAPP analysis to show those causes of action arose out of conduct protected by section 425.16 and Kuczewski did not meet his burden under the second step to show there was a probability he would prevail on the merits of those causes of action.

A

Kuczewski alleged in paragraph 38 of his first amended cross-complaint, which allegation by subsequent incorporation applied to the fifth and sixth causes of action, that during one incident at the TPG (presumably on November 9, 2014), "Marien placed Kuczewski under citizen's arrest for trespassing." Paragraph 41 similarly alleged that

on November 9, 2014, "Plaintiffs . . . falsely arrested him for trespass." Paragraph 43 alleged that on March 8, 2015, "Plaintiffs . . . falsely arrested Kuczewski for trespass

. . . ." Paragraph 47 alleged that on July 12, 2015, "Jebb . . . falsely arrested him for assault and/or battery . . . ."

The fifth cause of action specifically alleged in paragraph 103 that "on November 9, 2014[,] and March 8, 2015, Marien and/or Gabriel Jebb were successful in their attempt to have Kuczewski arrested. On these days, [they] intentionally caused Kuczewski to be arrested by providing false information to law enforcement and/or requesting the police place him under citizen's arrest."[10] The sixth cause of action alleged in paragraph 117 that "[o]n July 12, 2015, after Gabriel Jebb pushed Kuczewski over the guardrail, Kuczewski called police to report the assault. Gabriel Jebb made false statements to the responding officers and/or insisted on Kuczewski's citizen's arrest causing Kuczewski to be arrested for trespass, assault, and/or battery." It further alleged in paragraphs 118 and 119 that Jebb did not have probable cause to arrest Kuczewski for trespass or for assault or battery.

Plaintiffs filed a section 425.16 motion to strike the fifth and sixth causes of action of Kuczewski's first amended cross-complaint, arguing those causes of action arose out of their exercise of their First Amendment rights to report information to police and Kuczewski could not show a probability that he would prevail on their merits. Kuczewski opposed their motion, arguing that Plaintiffs did not meet their burden under the first step of the anti-SLAPP analysis to show their alleged conduct was protected by section 425.16. In particular, he argued Plaintiffs did not meet their burden under the first step because he alleged he was arrested based on citizen's arrests, which arrests were conduct that is not protected by section 425.16. In reply to Kuczewski's opposition, Plaintiffs argued, inter alia, that they did not make any citizen's arrests of him, but rather the police officers arrested him based on their own observations.

The trial court denied Plaintiffs' motion to strike the fifth and sixth causes of action of Kuczewski's first amended cross-complaint, stating in part: "The Fifth and Sixth Causes of Action involve three arrests: November 9, 2014; March 8, 2015; and July 12, 2015. The operative complaint alleges that each of these arrests were citizen's arrests."

B

A citizen has the authority to make a citizen's arrest. (Pen. Code, § 847, subd. (a); Wang v. Hartunian (2003) 111 Cal.App.4th 744, 748 (Wang).) "A private person who has arrested another for the commission of a public offense must, without unnecessary delay, take the person arrested before a magistrate, or deliver him or her to a peace officer." (Pen. Code, § 847, subd. (a).) A police officer is "obligated to accept custody of a person who has been placed under citizen's arrest . . . ." (Kesmodel v. Rand (2004) 119 Cal.App.4th 1128, 1137, fn. 10.) In contrast to a citizen's arrest, a police officer may arrest a person if he or she has probable cause to believe that person has committed a public offense in the officer's presence (e.g., a misdemeanor offense) or if a person has committed (or the officer has probable cause to believe that person committed) a felony, whether or not it was committed the officer's presence. (Pen. Code, § 836, subd. (a).)

In Wang, supra, 111 Cal.App.4th 744, after the defendant obtained a restraining order against the plaintiff, the defendant summoned police officers who detained the plaintiff after the defendant signed a citizen's arrest form for the plaintiff's violation of the restraining order. (Id. at p. 746.) After the plaintiff posted bail, no further action was taken against him. (Ibid.) The plaintiff then filed an action against the defendant for, inter alia, false arrest and imprisonment. (Id. at pp. 746-747.) The defendant filed a section 425.16 motion to strike the complaint. (Id. at p. 747.) The trial court granted the motion and entered judgment for the defendant. (Id. at pp. 747, 752.) On appeal, Wang reversed the judgment, concluding the defendant's citizen's arrest of the plaintiff was conduct that was not protected by the anti-SLAPP statute. (Id. at pp. 746, 748-752.) Wang stated: "[A]ll [the defendant] did to cause the police to take custody of [the plaintiff] was to communicate, orally and in writing, that he wanted [the plaintiff] to be arrested and taken into custody. However, at the time of that communication, [the defendant] had already arrested [the plaintiff]. That is to say, [the defendant], and not the police, arrested [the plaintiff]." (Id. at p. 750.) However, the defendant's actions crossed the line between mere communication with governmental officers that is protected by section 425.16 and noncommunicative conduct that is not so protected when he arrested the plaintiff and caused the police officers to take him into custody. (Id. at pp. 751-752.) The court concluded the defendant was "responsible for the physical act of restricting [the plaintiff's] freedom of movement even though he personally never physically restrained [him]." (Id. at p. 752.) Accordingly, Wang held the defendant failed to meet his initial burden to show that the plaintiff's causes of action arose from protected activity under section 425.16. (Ibid.)

A valid citizen's arrest with delegation to a police officer of the physical act of arrest need not be express, but may be implied from the citizen's act of summoning an officer, reporting the offense, and pointing out the suspect. (Johanson v. Department of Motor Vehicles (1995) 36 Cal.App.4th 1209, 1216-1217, citing Padilla v. Meese (1986) 184 Cal.App.3d 1022, 1030-1031.) Accordingly, even if a citizen does not use any "magic words," the substance of his or her actions may constitute a valid citizen's arrest. (Johanson, at p. 1217; cf. Kesmodel v. Rand, supra, 119 Cal.App.4th at pp. 1136-1137 [defendant did not merely communicate information to police officers who then conducted an independent investigation and arrested plaintiff, but instead effected noncommunicative act of citizen's arrest of plaintiff that led to his detention and imprisonment by officers].)

C

Based on our review of Kuczewski's first amended cross-complaint, we conclude the claims for relief sought in its fifth and sixth causes of action did not arise out of protected conduct as Plaintiffs assert, but instead out of their alleged wrongful citizen's arrests of him, which is not conduct protected by section 425.16. (Baral, supra, 1 Cal.5th at p. 395 [defendant must show claim for relief arises out of conduct protected by section 425.16 in first step of anti-SLAPP analysis]; Wang, supra, 111 Cal.App.4th at pp. 746, 751-752 [citizen's arrest is not conduct protected by section 425.16].) Those causes of action alleged that Kuczewski was falsely arrested and imprisoned by Plaintiffs on three dates: November 9, 2014, March 8, 2015, and July 12, 2015. The first of those alleged false arrests occurred on November 9, 2014. The first amended cross-complaint expressly alleged that the November 9, 2014, arrest was a citizen's arrest by Plaintiffs, stating: "Marien placed Kuczewski under citizen's arrest for trespassing[;]" "Plaintiffs . . . falsely arrested him for trespass[;]" and "on November 9, 2014[,] . . . Marien and/or Gabriel Jebb were successful in their attempt to have Kuczewski arrested [and] . . . intentionally caused Kuczewski to be arrested by providing false information to law enforcement and/or requesting the police place him under citizen's arrest." (Italics added.) There is nothing in that cross-complaint that shows Kuczewski seeks relief for any conduct by Plaintiffs on November 9, 2014, other than their citizen's arrest of him.[11]

The first amended cross-complaint similarly alleged the two false arrests following the initial citizen's arrest on November, 2014, were also citizen's arrests. It alleged that on March 8, 2015, "Plaintiffs . . . falsely arrested Kuczewski for trespass . . . [;]" and

"on . . . March 8, 2015, Marien and/or Gabriel Jebb were successful in their attempt to have Kuczewski arrested [and] intentionally caused Kuczewski to be arrested by providing false information to law enforcement and/or requesting the police place him under citizen's arrest." (Italics added.) It also alleged that on July 12, 2015, "Jebb . . . falsely arrested him" and "Jebb made false statements to the responding officers and/or insisted on Kuczewski's citizen's arrest causing Kuczewski to be arrested for trespass, assault, and/or battery." (Italics added.) Considering those allegations in the context of the allegations regarding the November 9, 2014, false arrest, the first amended cross-complaint implicitly, if not expressly, alleged that both the March 8, 2015, and July 12, 2015, false arrests were also citizen's arrests.[12] There is nothing in that cross-complaint that shows Kuczewski seeks relief for any conduct by Plaintiffs on March 8, 2015, or July 12, 2015, other than their citizen's arrests of him.

To the extent the first amended cross-complaint includes references to statements or other information made by Plaintiffs to police officers on those three dates, any such presumably protected conduct was merely incidental or collateral to the claims for relief set forth in the fifth and sixth causes of action based on their noncommunicative acts of citizen's arrests, which claims do not arise from conduct protected by section 425.16. (Wang, supra, 111 Cal.App.4th at pp. 746, 751-752.) "Assertions [involving protected conduct] that are 'merely incidental' or 'collateral' are not subject to section 425.16." (Baral, supra, 1 Cal.5th at p. 394; see also Wallace v. McCubbin, supra, 196 Cal.App.4th at p. 1183 [alleged act is incidental to a claim if the act is not alleged to be the basis for liability]; Scott v. Metabolife Internat., Inc., supra, 115 Cal.App.4th at pp. 414-417; Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP, supra, 133 Cal.App.4th at p. 672.) Baral further noted that "[a]llegations of protected activity that merely provide context, without supporting a claim for recovery, cannot be stricken under the anti-SLAPP statute." (Baral, at p. 394.) We conclude any allegations in the first amended cross-complaint of protected activity merely provide context for Kuczewski's claims for relief based on Plaintiffs' alleged citizen's arrests of him and do not provide any basis for an independent claim for relief. (Ibid.) None of the cases cited by Plaintiffs are factually apposite to this case or otherwise persuade us to reach a contrary conclusion.

Because Plaintiffs did not carry their burden under the first step of the anti-SLAPP analysis to show the fifth and sixth causes of action of Kuczewski's first amended cross-complaint arose out of conduct protected by section 425.16, we need not, and do not, address the question of whether Kuczewski met his burden under the second step of the anti-SLAPP analysis (i.e., to show there is a probability he will prevail on the merits of those causes of action). Accordingly, the trial court correctly denied Plaintiffs' section 425.16 motion to strike the fifth and sixth causes of action of the first amended cross-complaint.

Each party shall bear its own costs.

DISPOSITION

The orders are affirmed.

O'ROURKE, J.

WE CONCUR:

McCONNELL, P. J.

HUFFMAN, J.