What to Make of Ill Will

Hicks v. Richard, No. D074274 (D4d1 Sept. 17, 2019).

Defendant, who was chairman of an advisory board at a Catholic school wrote a letter to the Diocese, making various complaints about inappropriate behavior and poor performance by the school’s Principal. The Diocese ultimately fired the Principal, who then sued Defendant for defamation and IIED. Defendant filed an anti-SLAPP motion, which the trial court denied on the grounds that Principal came forward with evidence of the merit of his claims.

There’s not a lot of doubt that the claims arise from protected activity. Code of Civil Procedure § 425.16(e)(4), a catchall that addresses other conduct in furtherance of speech or petitioning in connection with an issue of public concern, has been interpreted to cover private forum speech on public issues. The issue here―the performance of a principal―was certainly important enough to a community of people to be a public issue. And, given that the complaint led to the Principal’s termination, it furthered the discussion of that issue, as now required in the test recently articulated by the Supreme Court in the FilmOn case.

So far as the merits go, the trial court erred when it found the claim was not barred by the Civil Code § 47(c) common interest privilege. Section 47(c) creates a qualified privilege for a communication made without malice to a person interested in the communication’s subject matter by another person also interested in the communication. The concept of interestedness is often a little fuzzy in application and it is not well pinned down in the case law. But it’s not much in dispute here because the case law is pretty clear that the members of a religious congregation share a common interest with its clergy and its broader church leadership.

“Malice” is tricky too. Some cases suggest that there are two kinds. For some annoying reason they are both called “actual malice.” There is literal malice, like hatred or ill will or an intent to do harm. And then there is New York Times type malice, as in a knowledge of falsity or recklessness about truth. There’s arguably circumstantial evidence of the former here―Defendant’s wife teaches at the school, and she seemingly is in a beef with the Principal. But the Court says that doesn’t matter, because there’s no evidence all that Defendant knew or didn’t care that his statements were false. Based on the cases cited in the opinion, ill will only matters when it impacts the defendant’s belief in truth or falsity, which wasn’t the case here. So the privilege should have applied, which merited granting the anti-SLAPP motion.

Reversed.

I’m not so sure the Court applied the right malice test here. In 2007, quoting an older case, the California Supreme Court said “[t]he malice necessary to defeat a qualified privilege is ‘actual malice’ which is established by a showing that the publication was motivated by hatred or ill will towards the plaintiff or by a showing that the defendant lacked reasonable ground for belief in the truth of the publication and therefore acted in reckless disregard of the plaintiff’s rights.” Taus v. Loftus, 40 Cal. 4th 683, 721 (2007) (emphasis on or original). That appears to state the test in the disjunctive. There more generally seems to be some confusion on the entire issue, arising from a long historical interaction and partial merger between the statutory standard under § 47(c) and the constitutional standard applicable to defamation claims. The issue is explored in a very long footnote in McGrory v. Applied Signal Tech., Inc., 212 Cal. App. 4th 1510, 1539 n.18 (2013).

Just How Interesting and to Whom?

Bikkina v. Mahadevan, No. A143031 (D1d4 Oct. 9, 2015)

Two of the four categories of activity protected under the anti-SLAPP statute require the lawsuit to arise from speech activities “in connection with an issue of public interest.” Cal. Code Civ. Proc. § 425.16(e)(3) or (4). Sussing that out can be a tough job for the judiciary, particularly when it is an invitation to weigh in on the seriousness of intra-academic disputes. Just how public or interesting does an issue have to be to meet the test? 

Here, the Court finds that one academic’s relentless and seemingly inaccurate attacks on another’s work doesn’t make the public issue grade. It then goes on to hold that it doesn’t matter anyway, because the plaintiff came forward with enough evidence to defeat the motion. Given the alternative holding, it seems—at least a little—like the court is potentially letting the merits of the dispute color the public interest inquiry. That is, the analysis intimates that the inappropriate and unmeritorious—and thus potentially defamatory—nature of accuser’s accusations precludes them from being publicly interesting in the first place. 

Cut and Dry

Barker v. Fox & Assocs., No. A142373 (D1d2 Sept. 10, 2015)

Trial court denied an anti-SLAPP motion in a defamation case. Nobody really disputes that the claims—addressing statements made in connection with conservatorship proceedings—arise from protected activity. But plaintiff failed to come forward with both evidence that established the prima facie the elements of his claim, as well as evidence of malice sufficient to overcome the qualified “common interest” privilege under Civil Code § 47(c). So the motion should have been granted.

Reversed.

Fraudlent Transfers Are Not Protected Actity, Even if Accomplished Through a Collusive Settlement

Optional Capital v. Das Corporation, No. B241244 (D2d1 Jan 15, 2014)

The effort it would take to explain the convoluted facts in this case significantly outweighs any procedural interest, so I’ll try to be brief. Generally speaking, defendants are individuals and companies that are alleged to have raided plaintiff’s assets to the tune of $35 million. As part of what the court describes as “an extremely tangled thicket of legal proceedings in both state and federal court, as well as in Switzerland,” plaintiff got a judgment against some of defendants. In this case, plaintiff is trying to collect on its judgment by suing other defendants as the beneficiaries of fraudulent transfers. Somewhere in the thicket of legal proceedings there was a settlement between the judgment debtor defendants and one of the fraudulent transferee defendants. Plaintiff says that it was collusive—part a conspiracy to divert some funds out of a recently unfrozen Swiss bank account so that plaintiff couldn’t execute against it. As seems to happen any time a complaint references some other litigation, defendants filed an anti-SLAPP motion and a demurrer on the Civil Code § 47(c) litigation privilege, both of which the trial court granted.

Not so, said the court of appeal. This case does not arise from protected activity. No doubt, settlement-related activity can sometimes be “protected activity,” as defined in Code of Civil Procedure § 425.16(e). Just because a collusive settlement was alleged to have been a means by which the debtor defendants accomplished their fraudulent transfers does not mean that plaintiff is suing them and the fraudulent transferee defendants for the act of entering a settlement. They are instead being sued engaging in a scheme to shuffle money around avoid the debtor defendants’ obligations on the judgment. That claim does not “arise from protected activity.” In any event, plaintiff showed a likelihood of success on its fraudulent transfer theory. And similarly, as to the demurrer, although the litigation privilege might apply to statements made in settlement negotiations, it does not apply when a lawsuit is based on a separate, non-communicative, wrongful act, like a conspiracy to transfer funds out of the clutches of one’s creditors for lack of reasonably equivalent value.

Reversed.

You Have a Right to Dish Without Malice ...

Hui v. Sturbaum, No. A135597 (D1d5 Jan.9, 2013)

The court affirms an anti-SLAPP dismissal because the statements at issue were subject to the qualified common interest privilege in Civil Code §47(c).