Simorangkir v. Cobain CA2/5 ( 2015 )

Filed 2/26/15 Simorangkir v. Cobain CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FIVE
DAWN SIMORANGKIR, B254895
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC521565)
v.
COURTNEY LOVE COBAIN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Michael
L. Stern, Judge. Affirmed.
Dongell Lawrence Finney LLP, Richard A. Dongell and Marc Gans for Defendant
and Appellant.
Freedman & Taitelman LLP, Bryan J. Freedman and Jesse A. Kaplan for Plaintiff
and Respondent.
1
INTRODUCTION
This is the second action between these parties related to allegedly defamatory
statements which Courtney Love Cobain (defendant) made concerning Dawn
Simorangkir (plaintiff). The first action between the parties was resolved by a settlement
in which defendant paid plaintiff $430,000. In this litigation, plaintiff sues for
statements made by defendant in public media two years later.
Determining that the dispute between these parties is not “an issue of public
interest” as that term is defined by Code of Civil Procedure1 sections 425.16, subdivisions
(e)(3) and (4), we affirm the trial court’s denial of defendant’s motion to dismiss the first
amended complaint.
PROCEDURAL HISTORY
Plaintiff filed this action on September 17, 2013, and her First Amended
Complaint for Defamation on December 16 of that year. Plaintiff there alleges that she is
an “up and coming fashion designer [who] was previously the victim of [defendant’s]
vicious, repulsive and conspicuously defamatory rants in multiple public forums . . .
where [plaintiff] conducted business, and [that defendant also published these defamatory
rants] to [plaintiff’s] clients and others in the fashion industry.” Plaintiff alleges that on
May 30, 2013, two years following resolution of the earlier defamation litigation,
“[defendant] appeared on the Howard Stern show, a popular talk show that is broadcast to
millions,” and repeated the false allegations which had been the subject of the prior
litigation and settlement, that plaintiff had stolen from defendant and that plaintiff had
engaged in prostitution. She further alleges that defendant continued to defame plaintiff
even after Stern cautioned her. As an independent basis for her allegations of
defamation, plaintiff alleges that, also in the spring of 2013 and independent of her acts
1
All subsequent undesignated references are to the Code of Civil Procedure.
2
while on that show, defendant posted on Pinterest, a popular social media Web site, some
of the same defamatory claims, adding others.
Defendant moved to dismiss this litigation as a “meritless Strategic Lawsuit
Against Public Participation” under subsections (3) and (4) of section 425.16, subdivision
(e) (commonly referred to as an “anti-SLAPP motion), arguing the statements
complained of arise from protected activity and that plaintiff cannot establish the
requisite probability of prevailing at trial on the merits of her claims.
The parties having filed memoranda and offered evidence in support of, and in
opposition to, the anti-SLAPP motion, the matter was argued on February 20, 2014, and
submitted.2 The court issued a minute order later the same day in which it made rulings
on certain but not all of the evidence issues presented3 and, with respect to the merits of
the motion, wrote: “The motion is called and argued. [¶] The motion is denied.” The
court ordered plaintiff to give notice. No other order stating the rulings made is in the
record. Plaintiff’s notice of ruling, filed February 26, 2014 includes, inter alia, the
evidence rulings, and expands on the trial court’s “The motion is denied” statement, as
follows:
“1. Defendant’s anti-SLAPP Motion is DENIED.
“2. Defendant’s statements are not on a matter of public interest. There is no
showing by the Defendant that the Plaintiff is a public figure in any way or that the
matter was in the public eye, involved a topic of widespread public interest, or an
ongoing discussion or debate. Accordingly, Defendant failed to satisfy her burden.
“3. Plaintiff has also established a probability that she will prevail on her cause of
action for defamation. . . .”
2
No court reporter was present to record the parties’ arguments or any oral rulings
by the court.
3
The trial court ruled on plaintiff’s objections to declarations of defendant and of
Marc Gans. Although other written evidence objections were made, there is no
indication that the trial court made any rulings on those objections.
3
Defendant filed a timely notice of appeal.4
FACTUAL BACKGROUND5
Plaintiff is an independent clothing designer headquartered in Austin, Texas. She
markets her clothes principally through the internet under the trade name “Boudoir
Queen” and using the “online store” www.etsy.com (“Etsy”). One distinguishing
characteristic of her clothing line is that each garment includes pieces of used garments
combined or individually utilized in distinctive ways.
Defendant, a celebrity performer, began to purchase clothing from plaintiff in
2008, flying plaintiff to Los Angeles in November of that year to meet regarding using a
substantial quantity of defendant’s worn clothes to create custom clothing for her. In the
two trips which plaintiff made to meet with defendant, first to defendant’s home and later
to defendant’s hotel after she had moved out of her home, defendant observed plaintiff’s
surroundings to be in a state of chaos and disarray. On the first visit, to defendant’s then
home in Malibu, plaintiff observed clothing scattered everywhere, including on the front
lawn. On the visit to defendant in her hotel room, plaintiff saw that it was in a state of
total confusion. Over the course of their business relationship defendant expressed
concern with plaintiff’s custody of her clothing, leaving voicemail messages (which
4
Appeal of an order denying a motion under section 425.16 is authorized by its
subsection (i) and by section 904.1, subdivision (a)(13). This minute order is sufficient
as an appealable order as it did not direct the preparation of a further written order (see In
re Marriage of Russo (1971) 21 Cal.App.3d 72, 77; Teichner v. Klassman (1966) 240
Cal.App.2d 514, 525) and no other statute requires entry of a formal order on the instant
ruling. (Cf., § 581d, which requires a written order signed by the court [including a
signed minute order] when an action is dismissed.)
5
In compliance with applicable authorities, in setting out the facts and allegations
necessary to our consideration of this appeal, “We consider ‘the pleadings, and
supporting and opposing affidavits upon which the liability or defense is based.’ (§
425.16, subd. (b)(2).) (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th
204, 212, 12 Cal.Rptr.3d 786.)” (Soukup v. Law Offices of Herbert Hafif (2006) 39
Cal.4th 260, 269, fn. 3 (Soukup).)
4
plaintiff considered threatening) alleging plaintiff had lost or taken defendant’s clothing.
Defendant also refused to acknowledge the detailed inventories which plaintiff had
provided to her, rejecting plaintiff’s offer to return the articles of clothing which
defendant had given plaintiff to use in fashioning new garments of plaintiff’s distinctive
designs.
In March 2009, defendant posted a series of allegedly defamatory statements about
plaintiff on internet sites Pinterest and Etsy in which she asserted that defendant stole
from her; defendant claimed both to have observed the theft and to have a video
recording of it. In the same month defendant engaged in a “16-minute rant” on twitter in
which she accused plaintiff of being a felon, stealing cash and goods from her, having a
history of dealing cocaine, losing custody of a child, and having a record of prostitution.
Defendant later purchased additional clothing from plaintiff and apologized for her
statements. This and other conduct led to the earlier and now-settled litigation.
In May 2013, defendant appeared on the Howard Stern show. During the course
of that appearance and in response to a question about her “troublesome Twitter habits
and [plaintiff’s] prior defamation lawsuit,” defendant stated: “She had—I felt like she
had stolen from me . . . She allegedly stole from me?! I have it on CCTV. Okay, she
allegedly stole from me.” Stern then stated: “I wouldn’t say something
unless I knew that it to be [sic] one-hundred percent true and I could back it up and prove
it. . . .” Defendant, next stated: “Well, the fact that in one case someone had told me that
they had engaged in prostitution. You know.” Stern responded, “See that is what I am
saying. You throw things out there. Like ‘someone,’ ‘prostitution,’ and a ‘name.’”
Despite Stern’s warnings, [defendant] continued to defame [plaintiff]: “No, she—they
told me that. Maybe they were lying, But [sic] you know, hey.” Plaintiff alleges that
listeners understood defendant’s comments to mean that plaintiff had stolen from
defendant and that plaintiff had engaged in prostitution.
Within a few weeks of this television appearance, defendant also posted on
Pinterest claims that plaintiff had stolen from her, that the theft was recorded on CCTV
and that the theft was observed by named individuals. Defendant started one “tweet”
5
with the words “you stole [sic] 36 bags of my txtiles [sic] and designs” and concluded
that “tweet” with the word “Fact.” Defendant did not include in her “tweets” the
allegation of prostitution.
CONTENTIONS
Defendant contends the statements she made on the Howard Stern show and on
the Pinterest internet site were made in connection with an issue of public interest, which
she identifies as being derived from the media coverage of the prior litigation between the
parties coupled with the “celebrity” status of each of them, and that plaintiff cannot
establish a probability of prevailing on her defamation claims, citing both subsections (3)
and (4) of section 425.16.
Plaintiff challenges defendant’s contention that the present litigation is a matter of
public interest or a public issue. She also argues that the trial court correctly determined
that she had established a sufficient probability of prevailing at trial to warrant the trial
court’s denial of defendant’s motion.
ANALYSIS
Principles on review of anti-SLAPP motions
Section 425.16 provides, inter alia, that, “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 or 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.”
(§ 425.16, subd. (b)(1).)
“Resolution of an anti-SLAPP motion ‘requires the court to engage in 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
6
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.)” (Jarrow
Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733.)
Our review of the record is de novo and independent of the trial court’s legal
conclusions (Soukup, supra, 39 Cal.4th at p. 269, fn. 3); we determine whether the
asserted cause of action arises from the defendant’s free speech or petitioning activities as
are within the scope of section 425.16. (ComputerXpress, Inc. v. Jackson (2001) 93
Cal.App.4th 993, 999.)
The subparts of section 425.16, upon which defendant relies in arguing that she
has established the “first prong” of an “anti-SLAPP analysis” and thereby has shifted the
burden to the plaintiff to establish the “second prong” that plaintiff has the requisite
probability of prevailing at trial, provide:
“(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: . . . (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.”
The term “issue of public interest,” appears in both subsections (3) and (4) and
cases which construe this term in the latter subsection can be used to define the same
term as it appears in the former section. (See, 1-800 Contacts, Inc. v. Steinberg (2003)
107 Cal.App.4th 568, 583.)
Application of principles
Defendant offers multifaceted arguments that the statements she made on the
Howard Stern show and on an internet site are “in connection with an issue of public
7
interest” (§ 425.16, subd. (e) (3)) and, alternatively, are “other conduct . . . in connection
with a public issue or an issue of public interest” (§ 425.16, subd. (e)(4)). First, she
contends that the statements made meet these statutory requirements “as evidenced by the
extensive media coverage of [the parties’] prior dispute. . . .” (Emphasis added.) Next,
she contends, they come within the statute because both of the parties involved are
“celebrities,” and due to the circumstance that what defendant said and “tweeted” were
“[c]omments referencing litigation that has received extensive media attention . . . ,” also
referencing the prior dispute.
Defendant also argues both the Howard Stern show on which she made, and the
internet site on which she posted, the comments at issue are public fora. Plaintiff does
not challenge the public forum contention; we accept this as a concession that the
Howard Stern program and the Web site on which the statements were posted are public
fora.
The core argument is that defendant’s statements—that plaintiff had stolen
clothing items from defendant and that defendant had been a prostitute—are statements
made in connection with “an issue of public interest,” or “a public issue,” within the
scope of the anti-SLAPP statute because she and plaintiff are celebrities and the prior
dispute between the parties had been the subject of “extensive and prolonged national
news coverage.” In support of her “public issue/public interest” claim defendant points
to the circumstanced that Howard Stern asked her about her tweeting habits and about the
prior litigation between these parties as demonstrating continued public interest in the
subject. Defendant does not offer any independent basis for her unilateral posting of the
allegedly defamatory statements on the internet. We note also that the “tweets” made no
reference to the prior litigation.
As noted above, to establish the “first prong” of her anti-SLAPP motion,
defendant has the burden to establish that the cause of action challenged “arise[s] from
an[] 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. . . .” (§ 425.16, subd. (b)(1).) “In making its determination, the court shall
8
consider the pleadings, and supporting and opposing affidavits stating the facts upon
which the liability or defense is based.” (§ 425.16, subd. (b)(2).) Thus, the legal
contentions advanced are considered in light of the facts properly admitted.
In the trial court, the evidence which defendant offered in support of her “first
prong” contention consisted of two declarations, hers and that of one of her counsel,
Marc Gans, together with extensive exhibits attached to the latter. The trial court
sustained numerous objections to each declaration, none of which is challenged on this
appeal. 6 We have reviewed the portions of those declarations which were admitted into
evidence as well as the allegations of the first amended complaint and find that there is no
evidence in the record of any articles in the media about the current litigation in contrast
to evidence that the prior litigation was the subject of media interest and comment. Nor
is there any evidence of the timing of the posting of the “tweets” alleged to be defamatory
in the first amended complaint (other than they occurred within the year prior to the filing
of the complaint).
Plaintiff objects to defendant’s argument that the prior media coverage which is in
evidence is indicative of public interest in this new litigation, arguing that this contention
was not made to the trial court, and that it is thereby forfeited, citing North Coast
Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 28-30 and Saville
v. Sierra College (2005) 133 Cal.App.4th 857, 872-873. While theories not raised in the
trial court generally may not be asserted for the first time on appeal (see Hale v. Morgan
(1978) 22 Cal.3d 388, 394 and Ward v. Taggart (1959) 51 Cal.2d 736, 742), here the fact
of prior media coverage was presented in defendant’s moving papers and it was
specifically noted in the first amended complaint. For these reasons, we will consider
6
When a trial court has ruled on evidence objections and there is no request made
that we review those rulings, as in this case, we may accept those rulings as part of the
evidentiary basis for our de novo review. In any event, the standard of review of
evidence rulings for anti-SLAPP motions is abuse of discretion. (Morrow v. Los Angeles
Unified School District (2007) 149 Cal.App.4th 1424, 1444.) Assuming arguendo that
the defendant had challenged the trial court’s rulings adverse to it in this court, we find
no abuse of discretion in the trial court sustaining the objections made.
9
that circumstance as a factor in determining whether defendant prevails on the first prong
of this anti-SLAPP motion. We note in this regard the absence of any evidence in the
record that the current allegedly defamatory statements were the subject of any public
interest.
Claimed celebrity status of the parties
There is virtually nothing in evidence concerning the “celebrity” status of plaintiff;
nor does defendant provide any definition of what the term means. Defendant appears to
be relying on the circumstance that plaintiff’s name and business description appears in
articles posted on the internet in connection with the prior litigation of the parties and that
plaintiff does advertise on the internet. The only evidence in the record consists of the
allegation of the complaint that she is an up and coming fashion designer headquartered
in Austin, Texas and that she has designed clothes worn by celebrities including
defendant.
There are three categories of references to defendant’s celebrity status.
Defendant’s own declaration states that “I live my life in the public eye. . . .” The same
source makes specific references to her profession which involves public appearances
and notoriety. The Gans declaration contains one paragraph which addresses the
defendant’s public personage. It begins: “Love is an accomplished and well-acclaimed
celebrity subject to widespread media attention.” Many of the admitted exhibits attached
to that declaration support the conclusion that she is a “celebrity” however the term may
be defined. As will be seen, other issues will be determinative and we need not further
analyze this aspect, or counsel’s professed but unsupported expertise in so declaring his
client.
Public interest factor
Defendant relies on several cases, including those now discussed, to sustain her
burden on the first prong. In Wilbanks v. Wolk (2004) 121 Cal.App.4th 883 (Wilbanks),
the court considered whether the defendant’s publication of statements critical of the
10
plaintiff’s viatical settlement brokerage7 were made in connection with an issue of public
interest. Defendant quotes a portion of the court’s introduction to its discussion of what
constitutes an issue of public interest, as follows:
“The most commonly articulated definitions of ‘statements made in connection with a
public issue’ focus on whether (1) the subject of the statement or activity precipitating the
claim was a person or entity in the public eye; (2) the statement or activity precipitating
the claim involved conduct that could affect large numbers of people beyond the direct
participants; and (3) whether the statement or activity precipitating the claim involved a
topic of widespread public interest. (Commonwealth Energy Corp. v. Investor Data
Exchange, Inc. (2003) 110 Cal.App.4th 26, 33, 1 Cal.Rptr.3d 390; Rivero v. American
Federation of State, County, and Municipal Employees, AFL–CIO (2003) 105
Cal.App.4th 913, 924, 130 Cal.Rptr.2d 81 (Rivero).)” (Wilbanks, supra, 121 Cal.App.4th
at p. 898.)
We set out the balance of that paragraph to indicate that the text that follows
contains limiting language of assistance in resolving this appeal. The paragraph quoted
by defendant concludes as follows:
“As to the latter, 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.
(Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th
107, 1 Cal.Rptr.3d 501 (Du Charme) [report that an employee was removed for financial
mismanagement was informational, but not connected to any discussion, debate or
controversy]; Consumer Justice Center v. Trimedica International, Inc. (2003) 107
Cal.App.4th 595, 601, 132 Cal.Rptr.2d 191 [advertisements about a pill offering a natural
alternative to breast implants are not about the general topic of herbal supplements];
Rivero, supra, 105 Cal.App.4th at p. 924, 130 Cal.Rptr.2d 81 [reports that a particular
7
A viatical settlements brokerage arranges for insureds to sell their life insurance
policies to investors for large discounts from the ultimate death benefit. The matter is
controversial, and of public interest, inter alia, because of the large discounts at which
such transactions occur and because, “As a practical matter the sooner the “viator” dies,
the greater the return on the investment. (Wilbanks, supra, 121 Cal.App.4th at p. 889.)
11
supervisor was fired after union members complained of his activities are not a
discussion of policies against unlawful workplace activities].) (Wilbanks, supra, 121
Cal.App.4th at p. 898.)
Thus, Wilbanks points out an important condition on whether a matter is one
within the definition of “public interest” in the subsections we are called upon to construe
and apply in this case (§ 425.16, subds. (e)(3) and (4)): whether the statement in some
manner itself contributes to the public debate. We will conclude that defendants’
statements do not meet this test. (Wilbanks, supra, 121 Cal.App.4th 883.)
The second case cited by defendant is Hall v. Time Warner, Inc. (2007) 153
Cal.App.4th 1337, in which Marlon Brando’s retired housekeeper filed an action for
invasion of privacy based on the publication on a national television show concerning the
world renowned actor having named her as a beneficiary of his will while passing over
several heirs at law. In holding that the matter was in the public interest under the first
prong, the court describes why the public interest element was present in the following
terms:
“The public’s fascination with Brando and widespread public interest in his
personal life made Brando’s decisions concerning the distribution of his assets a public
issue or an issue of public interest. Although Hall was a private person and may not have
voluntarily sought publicity or to comment publicly on Brando’s will, she nevertheless
became involved in an issue of public interest by virtue of being named in Brando’s will.
The defendants’ television broadcast contributed to the public discussion of the issue by
identifying Hall as a beneficiary and showing her on camera. We conclude that the acts
from which the complaint arises, specified ante, constituted conduct in furtherance of the
defendants’ right of free speech ‘in connection with a public issue or an issue of public
interest’ (§ 425.16, subd. (e)(4)).” (Hall v. Time Warner, Inc., supra, 153 Cal.App.4th at
p. 1347.)
12
In the present case, there is no evidence of any such interest. Nothing in the
record in this case suggests that defendant has the public interest or following that Brando
had; the only evidence in the record is her self-serving and factually shallow claim,
coupled with a profession of celebrity by one of her lawyers. Nor is there is any socially
important implication in this case akin to that presented by Brando’s gift to his
housekeeper to the exclusion of his heirs at law, or as in the viatical settlements case
upon which defendant also relies. Further, there is no evidence of any such celebrity on
the part of plaintiff. The record contains only her own description of herself in the
present complaint as an “up and coming fashion designer,” and copies of print outs of
postings on the internet regarding the prior litigation, and claims by defendant’s counsel
of the number of “followers” plaintiff has on three Web sites. There is no evidence of
any renewed interest on the part of the public in this renewed litigation.
Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798 (Seelig),
addressed whether statements by a San Francisco radio show mocking the plaintiff, a
former participant on a “reality television show” (Who Wants to Marry A
Multimillionaire), were made in connection with an issue of public interest. There, the
plaintiff had voluntarily placed herself in the public eye by willingly participating in a
television program which had “generated considerable debate within the media on what
its advent signified about the condition of American society.” (Id. at p. 807.) There is no
evidence in this case that plaintiff interjected herself into any public forum or that
defendant’s personalized attacks on plaintiff have any general social significance.
The closest case upon which defendant relies is Nygard, Inc. v. Uusi-Kerttulla
(2008) 159 Cal.App.4th 1027 (Nygard), which involved statements made by a terminated
company employee to the press regarding specific activities of the owner of his employer
entity. In sustaining the trial court’s ruling that the matter was one of public interest, the
Court of Appeal stated:
13
“‘Taken together, these cases and the legislative history that discusses them
suggest that ‘an issue of public interest’ within the meaning of section 425.16,
subdivision (e)(3) is any issue in which the public is interested. In other words, the issue
need not be ‘significant’ to be protected by the anti-SLAPP statute—it is enough that it is
one in which the public takes an interest. Judged by this standard, the trial court correctly
concluded that the statements on which the present suit is based concern an issue of
public interest. According to evidence introduced by defendants in support of their
motions to strike, there is ‘extensive interest’ in Nygård—‘a prominent businessman and
celebrity of Finnish extraction’—among the Finnish public. Further, defendants’
evidence suggests that there is particular interest among the magazine’s readership in
‘information having to do with Mr. Nygård’s famous Bahamas residence which has been
the subject of much publicity in Finland.’ The June 2005 article was intended to satisfy
that interest.” (Nygard, supra, 159 Cal.App.4th at p. 1042.)
In opposition, plaintiff relies on cases which reach contrary conclusions on
arguably similar facts. Of particular relevance to the present case is Albanese v.
Menounos (2013) 218 Cal.App.4th 923 (Albanese), in which the Nygard court limited the
language quoted above on which plaintiff relies. In the later case, a well-known stylist
with substantial entertainment industry experience who had worked as a stylist for the
celebrity defendant for over four years was accused at a public event at the W Hotel in
Hollywood of stealing; the allegation was that plaintiff had taken but never returned
“anything.” The same allegation was later repeated. (Id. at p. 927.)
In her motion under section 425.16, subdivision (e)(4) in response to the stylist’s
suit for defamation and other claims, the defendant claimed her allegations of theft
constituted speech in connection with a public issue or an issue of public interest
“because [plaintiff] is in the public eye and (2) any statement concerning a person in the
public eye qualifies as ‘speech in connection with a public issue or an issue of public
14
interest.’” (Ibid.) Defendant’s counsel supported this contention in part by citing the
contents of plaintiff’s own Web site which referenced plaintiff’s work for other
celebrities and that a Google search revealed hundreds of thousands (662,000) “hits” on
plaintiff and her career.
The trial court denied the motion under the first prong of the anti-SLAPP statute
for the following reasons: (1) that plaintiff is a celebrity stylist does not mean that she is
in the ‘public eye’ for purposes of the statute; (2) the allegation that the plaintiff stole
from the defendant “does not involve conduct that could affect large numbers of people
beyond the direct participants;” and (3) the alleged statement “does not involve a topic of
widespread public interest.” (Albanese, supra, 218 Cal.App.4th at pp. 927-928.)
In affirming the denial of the anti-SLAPP motion, Division Four of this court first
considered several other cases addressing the public interest requirement and then
proceeded to distinguish its holding in Nygard, supra, stating:
“We disagree with [defendant’s] reading of Nygard. Nygard did not redefine what
constitutes a matter of public interest. Nygard must be read in the context of the
evidence, which showed there was an “‘extensive interest’ in Nygard—‘a prominent
businessman and celebrity of Finnish extraction’—among the Finnish public,” as well as
a “particular interest among the magazine’s readership in ‘information having to do with
Mr. Nygard’s famous Bahamas residence which has been the subject of much publicity in
Finland.’” (Nygard, supra, 159 Cal.App.4th at p. 1042 [72 Cal.Rptr.3d 210].) Nygard
does not stand for the proposition that any statement about a person in the public eye is a
matter of public interest.” (Id. at pp. 935-936.)
Division Four explained: “‘If we were to adopt [defendant’s] overly broad
definition of a public issue, we would obliterate the requirement that “there should be a
degree of closeness between the challenged statements and the asserted public interest.
The assertion of a broad and amorphous public interest is not sufficient. Moreover, the
15
focus of the speaker’s conduct should be the public interest, not a private controversy.’
(Hailstone v. Martinez (2008) 169 Cal.App.4th 728, 736 [87 Cal.Rptr.3d 347].)”
(Albanese, supra, 218 Cal.App.4th at p. 936, emphasis added.)
Defendant in this case contends that her comments on the Howard Stern show and
on the internet have a relationship to the public interest in that they foster debate about
the scope of freedom of expression on the internet and in other public fora. Yet,
defendant presented no admissible evidence that any such debate followed either her
appearance on the Howard Stern show or after her internet postings. Assuming arguendo
that the public discussion which occurred during the first lawsuit was as vibrant as she
claims, it is at least odd that defendant presented no evidence of any similar public debate
following her statements which are the focus of this litigation. Nor does the
unsubstantiated “celebrity” status of the plaintiff assist defendant’s arguments.
This case is unlike Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146, upon
which defendant relies. There, a series of lawsuits and appellate court rulings concerning
second parent adoption rights of same sex parents were parts of a long-continuing public
debate and had far reaching effect on persons adopting children. Here, by contrast, there
is no evidence that defendant’s repetition of prior comments reopened “debate” on an
issue of supposed but unproven public interest.
Further, in analyzing first prong issues we focus on the specific nature of the
statements rather than on any generalities which may be abstracted from them. Thus, in
Rivero, supra, 105 Cal.App.4th 913, the court held that “unlawful workplace activity
below some threshold level of significance is not an issue of public interest, even though
it implicates a public policy.” (Id. at p. 924.) There, the court found insufficient to meet
the statute’s first prong threshold of ‘relating to an issue of public interest’ claims in
documents concerning the supervisor plaintiff’s alleged theft, extortion, nepotism,
acceptance of bribes, and abusive treatment of the group of janitors he supervised
16
notwithstanding that public funds were involved.” (Id. at p. 925.)
Just as matters of an individual’s credit history have been determined not to be a
matter of public concern under the First Amendment (Dun & Bradstreet, Inc. v.
Greenmoss Builders, Inc. (1985) 472 U.S. 749, 761-762 [105 S.Ct. 2939, 2946-2947]),
claims by one party that another has stolen articles of clothing are not on this record of
sufficient moment to reach the first prong threshold of ‘relating to an issue of public
interest’ as defendant claims. Further, defendant has made no credible argument that her
assertions regarding plaintiff’s claimed prostitution constitute a matter of public interest.
Defendant’s citation of Wilbanks, supra, 121 Cal.App.4th 883 is telling as there
the Court of Appeal held that a defendant moving to strike a complaint under section
425.16 must demonstrate that the present topic is of widespread public interest. (See, id.
at p. 898.) There is nothing in defendant’s statements on the Howard Stern
show or on the internet to suggest that she is doing more than seeking to advance her own
narrow “rant” against plaintiff. Her claims that plaintiff has stolen from her do not meet
the test of interest to the public within the meaning of the anti-SLAPP statute; they are of
concern to her (and, perhaps as she argues, to a small number of others), but they do not
“contribute to the public debate” about a topic of widespread public interest. (Accord,
Du Charme, supra, 110 Cal.App.4th at pages 108-109 [holding that statements in the
public interest must contribute to the public debate of some issue and denying
defendant’s anti-SLAPP claim that allegedly defamatory statements about plaintiff’s
termination posted on the internet qualified as statements in connection with a public
issue or an issue of public interest].)
Defendant’s reliance on Traditional Cat Assn., Inc. v. Gilbreath (2004) 118
Cal.App.4th 392 is problematic. There, discussion of the first prong was little more than
a paragraph in length and, as plaintiff argues, did not describe or discuss the evidence
supporting the conclusion that this prong had been met. In the same paragraph that court
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also notes that the alleged defamation may also have come within the subsection covering
comments in connection with judicial proceedings (§ 425.16, subd. (e)(2)). (Id. at p.
397.) Reliance on that case is therefore unpersuasive here.
Because we conclude that defendant has not met her first prong burden, we do not
address her other contentions.8
DISPOSITION
The order denying defendant’s motion to strike under section 425.16 is affirmed.
Plaintiff shall recover her costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
GOODMAN, J.
We concur:
TURNER, P.J.
KRIEGLER, J.
8
Plaintiff’s motion to strike portions of appellant’s reply brief is denied based on
this disposition.

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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