Is the Condition of a 1993 Mercury Tracer Really a Matter of Public Interest?

Klem v. Access Ins. Co., No. D070623 (D4d1 Nov. 20, 2017)

When Plaintiff got into an accident, the other driver’s Insurance Company gave notice to the DMV that Plaintiff’s car—a wrecked ’93 Mercury Tracer with 92k miles on it—was now a “salvage title” vehicle. That puts some kind of notification on the title that the vehicle has been totaled, which likely makes it hard to re-sell, even if repairs are made. Plaintiff was unhappy about this reporting, because he wanted to fix the car. Which ultimately led to Plaintiff suing the Insurer for slander of title and violations of the Unfair Competition Law. Defendants filed an anti-SLAPP motion, which the superior court denied, and the Insurer appealed.

Plaintiff makes classic mistake #1 in anti-SLAPP litigation by not seriously contesting the first, “arising from protected activity” prong of the analysis. In a terse analysis, the court says that filing the form was not protected as being in connection with some official proceeding. But it was “other conduct in furtherance” of speech on a public issue or issue of public importance protected under Code of Civil Procedure § 425.16(e)(4). According to the court, since resale of salvage cars is an issue that the public is concerned about, and indeed that the Legislature expressed concern about in passing the law at issue, the Insurer’s submission of the DMV form meets the test.

I’m not so sure. The anti-SLAPP statute doesn’t purport to dose out its strong medicine to any claim based on any kind of seemingly communicative activity, anywhere, no matter how parochial or banal. The subject of the Insurance Company's communication to the DMV was whether or not Plaintiff’s ’93 Tracer was a total salvage loss. That is clearly not an issue of public importance. But, writ as large as the court makes it, it seems like it is. The condition of Plaintiff’s Tracer becomes a mere voice in a larger debate about societal risk of the fraudulent resale of wrecked cars. Of course, if you generalize any issue enough it reaches a point where it’s a public concern. At which point the public issue test serves no meaningful purpose and the statutory language becomes basically nugatory.

So the way the court decides that a public issue is present begs the question: At what level of generality should the public issue analysis occur? The court doesn’t really get into the issue much, mostly because it looks like plaintiff didn’t take the “arising from” issue very seriously. But the question is up before the Supreme Court in FilmOn.com v. Doubleverify, Inc., 13 Cal. App. 5th 707 (2016), rev. granted --- Cal. Rptr. 3d --- (2017), so maybe there will be some guidance on it in the coming year.

Instead of focusing on arising from—where he might have had a chance—Plaintiff makes classic anti-SLAPP mistake #2 by channeling his argument into a claim that the challenged activity is illegal as a matter of law and thus unprotected under Flatley v. Mauro, 39 Cal.4th 299 (2006). But the Flatley standard is extraordinarily high—the defendant basically needs to say, in a pleading, “I admit what I did was a violation of the Penal Code.” Other than under the unusual facts of Michael Flatley’s own case, nobody ever meets that test. Unsurprisingly, Plaintiff doesn’t do so here.

Plaintiff also invokes the public interest exception in § 425.16(b). But plaintiff isn’t seeking relief for the public at large. So the exception doesn’t apply under its own terms.

So far as the merits go, the court finds that the DMV’s collection of these notices isn’t enough of a quasi-judicial proceeding for the absolute Civil Code § 47(b) litigation privilege to apply. But the DMV and Insurer do share a common interest in reporting the total loss of salvage vehicles so that the qualified common interest privilege in § 47(c) does apply. And since Plaintiff didn’t have evidence of malice (either as ill will or as a reckless disregard for the truth) he can’t meet his burden under prong two of the anti-SLAPP analysis. Similarly, he can’t come forward with sufficient evidence to show that the DMV filing was actually false.

Reversed.