Many are Still Confused About How to Handle Mixed Causes of Action

confused about mixed causes of action

I was recently served with an anti-SLAPP motion, attacking a complaint I filed on behalf of a client. I just filed our opposition, and felt compelled to write about the case, because it illustrates the continued confusion over how to handle mixed causes of action.

Filing an anti-SLAPP motion against the Sultan of SLAPP is a gutsy move. Let’s see if the attorney knew what he was doing.

Changing the facts as necessary to protect my client, the complaint is for defamation, and lists eight things the defendant said that are false and defamatory. The same eight statements were published two different ways. First, they were all published on Facebook, in a group that discusses the sort of business in which my client is engaged. Then they were published to an individual via a text message. I alleged two separate libel claims – one for the Facebook posting and the other for the text message.

Defendant should not prevail.

For a number of reasons, if the court follows the law, defendant cannot prevail on the motion. The first hurdle comes from the way evidence is viewed in conjunction with an anti-SLAPP motion. My client truthfully attested by declaration that all eight of the statements are false. Even without my client’s declaration, the falsity is apparent in some instances just based on the absurdity of the assertions.

Defense counsel apparently thought he could convince the Court of the truth of the defendant’s statements, failing to realize that in ruling on anti-SLAPP motions courts do not weigh the evidence, and accept “as true all evidence favorable to the plaintiff.” Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291;, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699-700.

Of the eight statements, only one is arguably subject to interpretation. Nothing to do with the case, but conceptually here is the issue. Let’s say you take a home office deduction on your taxes. You answer all the questions presented by TurboTax, and the software determines that you may legitimately take a home office deduction for your side gig. But the IRS then audits you, and after weighing all the factors, concludes that your side gig is more of a hobby, and disallows the home office deduction. The additional taxes are only $1,200, so you decide not to fight it.

Are you a tax cheat?

Your arch nemesis learns of your interaction with the IRS, and takes to the internet to proclaim that you are a “tax cheat,” without providing any details. Are you a tax cheat? TurboTax said the deduction was legitimate, but one IRS agent decided otherwise.

If you sued for defamation and were met with an anti-SLAPP motion, you would put in your declaration that you are not a tax cheat. You would argue that the deduction was legitimate, even if the IRS disagreed. But Defendant might argue that the truth of the statement can be determined as a matter of law by producing the letter from the IRS, showing you owed $1,200 more than you paid.

That is the sort of argument being made by defense counsel in my case. But that’s only 1 out of 8 statements! He has zero chance of showing the other seven statements are true. Yet he makes no request that the one allegation be stricken. Rather, he states that the entire complaint must be stricken, because that one statement (by his interpretation) is true. (His client’s declaration claims that some of the other statements are true, but the one statement is the lynchpin since that is the one statement supported by third party evidence.)

“What could he possibly be thinking?” you ask. I asked the same question, and found his thought process in the moving papers. Here is what he argued:

Where a cause of action is based on both protected activity and unprotected activity, it is subject to section 425.16 “unless the protected conduct is ‘merely incidental’ to the unprotected conduct.” (Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1550-1551.) In other words, “a plaintiff cannot frustrate the purposes of the SLAPP statute through a pleading tactic of combining allegations of protected and nonprotected activity under the label of one ‘cause of action.” (Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 308.) “When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at [the first] stage. If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached.” (Okorie v. Los Angeles Unified School Dist., 14 Cal. App. 5th 574.)

While the Complaint here relies entirely of allegations which have been shown to be provably false, in the event that the Plaintiffs somehow establish that some of the statements are unprotected, such a feat will do nothing for their claim as the remaining allegations are demonstrably false.

My working theory is that counsel fell asleep on his keyboard while typing the second paragraph, because it makes no sense. Why is he talking in terms of the allegations being “provably false”? Is he saying that my client alleges that the statements made by defendant are false, and he can show the allegations are false, so the statements are true? Shouldn’t he just argue that the statements were true?

Also problematic, the first two cases he cites, Haight Ashbury and Fox Searchlight, were decided before Baral v. Schnitt, and hence are not of much use. The third case, Okorie, was specifically disapproved by the California Supreme Court in Bonni v. St. Joseph Health Sys. (2021) 11 Cal.5th 995. It’s no wonder defense counsel’s argument is so confusing.

Follow the Yellow Brick Road.

Let’s take a look at Baral and its progeny.

In Baral, the California Supreme Court thought it had resolved the issue of how to handle so-called “mixed” causes of action, where plaintiff’s claims of liability are based on both protected and unprotected speech. The lower courts were all over the place on how to handle such claims. Some had ruled that such claims get dismissed, while others had ruled that they stay, even though they contain allegations of protected speech. Baral hoped to clear up the confusion with the final paragraph of the opinion, which provided a roadmap on how to proceed, even though not directly on point as to the case before it:

“Although the issue arose here at the second step of the anti-SLAPP procedure, identification of causes of action arising from protected activity ordinarily occurs at the first step. For the benefit of litigants and courts involved in this sometimes difficult area of pretrial procedure, we provide a brief summary of the showings and findings required by section 425.16(b). At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them. When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage. If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached. There, the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff’s showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is stricken. Allegations of protected activity supporting the stricken claim are eliminated from the complaint, unless they also support a distinct claim on which the plaintiff has shown a probability of prevailing.” Baral v. Schnitt, 1 Cal. 5th (2016) 376, 396.

Five years later, the Supreme Court could tell that there was still confusion, and revisited the topic in Bonni v. St. Joseph Health Sys. (2021) 11 Cal.5th 995. As defense counsel is attempting here, the trial court in Bonni had relied on the post-Baral decision of Okorie v. Los Angeles Unified School Dist. (2017) 14 Cal.App.5th 574, which held that “courts need not employ the Baral analysis when a defendant has moved to strike an entire cause of action rather than individual claims within a pleaded count.”

As I explain in Episode 32 of the California SLAPP Law Podcast, an anti-SLAPP motion is called a Special Motion to Strike because it is a Motion to Strike; it’s just special. Meaning that an anti-SLAPP motion should be noticed like any other Motion to Strike, setting forth the allegations, paragraphs, and causes of action the movant is seeking to strike.

Here, defense counsel stated only that he wants to strike the entire complaint. In other words, by failing to specify what he wanted to strike, aside from the entire complaint, he thought that actually made his task easier under the reasoning of Okorie. Okorie and others had taken Baral to mean that where the anti-SLAPP motion seeks to strike an entire cause of action, there is no need to separate protected and unprotected speech. Instead, the court was tasked with determining the “gravamen” of the claim. As Bonni put it, the courts were attempting to return us to the bad days, “again saddling the courts with an obligation to settle intractable, almost metaphysical problems about the ‘essence’ of a cause of action that encompasses multiple claims.”

This led to the latest explanation by the California Supreme Court:

We reject the contention: Our holding in Baral applies even though the Hospitals sought to strike the entire cause of action, rather than merely parts of it. If we were instead to adopt Bonni’s proposed gravamen approach, we would again risk saddling courts with an obligation to settle intractable, almost metaphysical problems about the “essence” of a cause of action that encompasses multiple claims. (Okorie v. Los Angeles Unified School Dist., supra, 14 Cal.App.5th at p. 587.) The attempt to reduce a multifaceted cause of action into a singular “essence” would predictably yield overinclusive and underinclusive results that would impair significant legislative policies. Striking a cause of action that rests in part on unprotected activity constrains a plaintiff’s ability to seek relief without advancing the anti-SLAPP’s goals of shielding protected activity, which would have been fully served by striking from the complaint only the allegations of protected activity. Conversely, refusing to strike any part of a cause of action that rests in part on protected activity defeats the legislative goal of protecting defendants from meritless claims based on such conduct. Plaintiffs do, of course, have considerable discretion in how to shape their pleadings, and as Okorie observed, there is nothing to stop them from “deliberately or innocently” pleading causes of action that “allege both protected and unprotected activity.” (Id. at p. 590.) But at the end of the day, we do not believe the Legislature in enacting the anti-SLAPP statute intended to make the protections of the anti-SLAPP law turn on a plaintiff’s pleading choices. (Baral, supra, 1 Cal.5th at p. 393.)

Bonni suggests his gravamen approach is justified by waiver principles: if a moving party has not specified which subparts of a cause of action it seeks to strike, the nonmovant should not be put to the burden of parsing the cause of action in the moving party’s stead. But this problem already has a solution under well-established anti-SLAPP law — namely, attention to the allocation of the applicable burden of proof. If a cause of action contains multiple claims and a moving party fails to identify how the speech or conduct underlying some of those claims is protected activity, it will not carry its first-step burden as to those claims. The nonmovant is not faced with the burden of having to make the moving party’s case for it.

But in my estimation, this is still too open-ended. How, exactly, does the movant “specify which subparts of a cause of action it seeks to strike”? In the original Baral decision, the court observed:

[T]he Legislature’s choice of the term “motion to strike” reflects the understanding that an anti-SLAPP motion, like a conventional motion to strike, may be used to attack parts of a count as pleaded. (See § 435, subd. (b)(1) [motion to strike applies to “the whole or any part” of a pleading]; § 436, subd. (a) [court may “[s]trike out any irrelevant, false, or improper matter”]; PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682 [defective portion of a cause of action is subject to a conventional motion to strike].) The bench and bar are used to thinking of motions to strike as a way of challenging particular allegations within a pleading. The drafters of the anti-SLAPP statute were surely familiar with this understanding.

What is the movant’s obligation?

So, must the movant identify which allegations it seeks to strike as it would with a conventional motion to strike? Or is it sufficient for the movant to simply allege that a cause of action should be stricken due to, say, the litigation privilege, and leave it to the court to determine which allegations run afoul of that privilege and whether other allegations are sufficient to support the claim?

Take the following hypothetical.

Plaintiff is being harassed by her ex-boyfriend, and decides to sue him for infliction of emotional distress (“IIED”). In her IIED cause of action, she alleges that he slashed her tires, wrote a false and defamatory Yelp review about her business, and repeatedly takes her to small claims court, falsely claiming she owes him money.

The tire slashing is unprotected, the Yelp review is protected but would turn on the second prong of the anti-SLAPP analysis, and the actions in small claims court would be absolutely protected. A very mixed claim.

The proper application of Baral is to disregard the allegations of unprotected activity, but only for the first prong of the Anti-SLAPP analysis. Thus, the allegation of tire slashing would not be considered. The movant should then identify the allegations regarding the Yelp review and the actions in small claims court, and argue why they are protected under the anti-SLAPP statute. Those two claims fall under the anti-SLAPP statute, but that is not the end of the analysis. We move to the second prong to see if the claims based on protected activity survive.

Here, the Yelp claim would survive, because the Yelp review was false and defamatory. This leaves only the claim based on the multiple small claims cases. That would likely not survive, because of the litigation privilege, which is absolute.

What is the result?

So does the court dismiss the cause of action for IIED? Clearly not. Even if the court concluded that plaintiff had failed to state a claim based on the Yelp review and small claims cases, the action would survive because of the tire slashing (assuming that is sufficient to support an IIED claim). But here, the Yelp review and tire-slashing both support the claim. The best the movant could accomplish would be the striking of the allegations regarding the small claims cases, but that would not dispose of the IIED action.

Defense counsel utterly missed this point. Again, here is what he argued:

While the Complaint here relies entirely of allegations which have been shown to be provably false, in the event that the Plaintiffs somehow establish that some of the statements are unprotected, such a feat will do nothing for their claim as the remaining allegations are demonstrably false.

He provided almost no analysis as to the first prong. He states simply that defendant’s speech is protected by the First Amendment, and that brings it under the anti-SLAPP statute.

But whether the speech is protected must be determined by the first prong, whereas he appears to be using the defense of truth to argue protected speech.

Truth is indeed a defense to defamation. He is claiming the statements are protected, because they are true. Thus, according to him, the statements fall into two categories. If he has convinced the court that a statement is true as a matter of law, then it is protected. The ones that are false are unprotected.

In his mind, if he can show that any of the eight statements are true, the entire case must be dismissed simply because the claims are then “mixed.”

In reality, the opposite is true. Since defense counsel failed to identify which specific allegations he is seeking to strike, his motion is an “all-or-none” motion. The court should conclude that since the two causes of action survive the second prong the motion must be denied in its entirety. (I argued that the defendant failed to even meet the first prong of the Anti-SLAPP analysis.) It would violate due process for the court to take it upon itself to determine what can be stricken, when defense counsel made no such request and I was not given the opportunity to respond. As Bonni held, “The nonmovant is not faced with the burden of having to make the moving party’s case for it.”

The hearing on the motion is set for September 12, 2022. I will report on the court’s ruling.

[UPDATE 9/21/2022:]  The anti-SLAPP motion was (naturellement) DENIED.  The Sultan of SLAPP does not file SLAPPs.

The day before the hearing, the judge issued a tentative ruling, stating that he was intending to deny the motion. At oral argument, Defense counsel brought up a new case, so the judge took the matter under submission to read the case. (It’s OK to argue a case not in your papers after a tentative ruling is issued, because you might need to address a point raised by that ruling. But the proper procedure is to give notice to opposing counsel that you intend to argue the new case at the hearing, so they can properly respond, and perhaps avoid having the motion taken under submission.) After the judge read the newly cited case, he stuck with his prior tentative ruling denying the motion.

Even though the judge apparently did not adopt my argument that this was an all-or-none motion, I find his analysis to be spot on in all other regards. So much so that I think it is worth setting forth the ruling in its entirely, so you can see a well-reasoned application of the anti-SLAPP analysis as applied to a real case.

I’ve changed the names and facts to protect my client’s privacy, making him the owner of a tow truck company and continuing with my purported tax cheat analogy.

Here is the ruling:

Defendant, Monica Jackson’s (“Defendant”) Special Motion to Strike the Complaint of Plaintiffs, Joseph Williams (“Williams”) and WeTowEm, Inc. (“WeTowEm”) (collectively, “Plaintiffs”) pursuant to Code Civ. Proc., §425.16 is DENIED.

As an initial matter, the Court finds that the motion is directed to each allegation of protected activity individually and, thus, the Court finds an individual analysis of each allegation is appropriate. (See Balla v. Hall (2021) 59 Cal.App.5th 652, 672; Baral v. Schnitt (2016) 1 Cal.5th 376.)

Prong 1: A moving defendant’s burden on an anti-SLAPP motion is to demonstrate that the acts of which plaintiff complains were in furtherance of defendant’s right of petition or free speech under the U.S. or CA Constitution in connection with a public issue as defined in the statute. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67; C.C.P. §425.16(b)(1).) A defendant meets that burden by demonstrating that the act underlying the plaintiff’s cause is protected activity – that is, that it fits one of the four categories in §425.16(e). (Navellier v. Sletten (2002) 29 Cal.4th 82, 88; Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1043).

Courts “should engage in a relatively careful analysis of whether a particular statement” is protected as being in connection with an issue of public interest. The context of the statement—including whether it is commercial speech, the speaker, audience, and purpose—is relevant. ( Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 145.)

A two-part test is used. First, the court must decide what “issue of public interest the speech in question implicates—a question we answer by looking to the content of the speech.” Second, the court examines the “functional relationship … between the speech and the public conversation about some matter of public interest.” ( Inc. v. DoubleVerify Inc., supra, 7 Cal.5th at 149-150, (internal quotes omitted).)

This second part of the test includes determining if the speaker “participated in, or furthered, the discourse that makes an issue one of public interest.” ( Inc. v. DoubleVerify Inc., supra, 7 Cal.5th at 151, 153; Murray v. Tran (2020) 55 Cal.App.5th 10, 34.)

“Public interest” within the meaning of the anti-SLAPP statute includes “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; see Brodeur v. Atlas Entertainment, Inc. (2016) 248 Cal.App.4th 665, 675.)

Here, Defendant summarily argues that disseminating statements to consumers regarding the manner in which Plaintiffs operate their towing truck business as well as statements which pertain to William’s taxes constitute protected speech. (Mtn. at 7:28-8:6.)

Statements re Taxes: Defendant offers no explanation for why statements regarding William’s taxes are statements made in connection with a public issue. There is no evidence presented that Defendant’s tax situation impacts a broad segment of society and/or that it affects a community in a manner similar to that of a governmental entity such that it could constitute an issue of public interest. While it is true that taxes may be an issue of public interest, an abstract public interest in the general subject matter is insufficient. (World Fin’l Group, Inc. v. HBW Ins. & Fin’l Services, Inc. (2009) 172 Cal.App.4th 1561, 1570—”The fact that ‘a broad and amorphous public interest’ can be connected to a specific dispute is not sufficient to meet the statutory requirements” of § 425.16.)

Further, even if the Court were to assume the public interest implicated taxes, Defendant failed to show how by sending the statement to Martha Rodriguez, she “participated in, or furthered, the discourse” regarding those issues. ( Inc. v. DoubleVerify Inc., supra, 7 Cal.5th at 151, 153.) The statement to Rodriguez was sent to one individual, whose interest in the public issue is not established, via a private instant message with no evidence that the statement was ever designed to enter the public sphere. (See Id.) Likewise, Defendant failed to show how statements regarding taxes published in an online forum focused on the towing industry in any way furthered the discourse on said issues.

Defendant also failed to provide any specific legal authority to support her contention that these statements are protected activity within the meaning of C.C.P. § 425.16(e). Thus, Defendant has not shown that the statements related to William’s payment of taxes are protected speech under C.C.P. § 425.16(e).

Therefore, the Court finds that Defendant has failed to meet her burden on Prong 1 as to the statements related to Defendant William’s payment of taxes. (See Compl. ¶¶ 12(c), 19(a), 19(b), 19(c), 19(g), and 19(h).)

Statements re Plaintiffs’ Business: Defendant’s argument that the statements pertaining to Plaintiffs’ towing business were made in connection with an issue of public interest has merit with respect to the first cause of action. (See Compl. ¶ 12(a), 12(b).) These statements are consumer information and were posted on a public discussion forum on Facebook for consumers of towing services. “Consumer information … [that] affect[s] a large number of persons … generally is viewed as information concerning a matter of public interest.” (See Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 898-899.)

Accordingly, the Court finds that Defendant met her burden on Prong 1 of demonstrating that the statements pertaining to Plaintiffs’ business that are at issue in the First Cause of Action are protected activity.

With respect to the Second Cause of Action, Defendant failed to show how the statements pertaining to Plaintiffs’ business sent to Rodriguez are statements made in furtherance of Defendant’s free speech rights in connection with a public issue or an issue of public interest. (C.C.P. § 425.16(e)(4).) Defendant offers no evidence to establish that by making the statements to Rodriguez Defendant furthered the public discourse on the consumer issue. (See Inc. v. DoubleVerify Inc., supra, 7 Cal.5th at 151, 153; Murray v. Tran (2020) 55 Cal.App.5th 10, 34.) These statements were made to a private individual by private instant message with no evidence that they were designed to enter the public sphere. Further, it is not alleged that Rodriguez has any interest in the consumer issue implicated.

Thus, Defendant has failed to meet her burden of showing that any of the statements giving rise to the Second Cause of Action are protected speech. Accordingly, the Court DENIES the motion on Prong 1 as to the Second Cause of Action.

With regard to the First Cause of Action, the Court DENIES the motion on Prong 1 as to the statements related to Defendant’s payment of taxes, but will proceed to the Prong 2 analysis for the statements related to Plaintiffs’ business.

Prong 2: If the court finds Prong 1 has been met, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. The opposing party has the burden on Prong 2. (Equilon, supra, 29 Cal.4th 53, 67; C.C.P. § 425.16(b)(1).)

To establish a probability of prevailing under C.C.P. § 425.16(b)(1), the plaintiff must state and substantiate a legally sufficient claim, to demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.)

The court considers the pleadings and supporting and opposing affidavits stating facts upon which the liability or defense is based. (Equilon, 29 Cal.4th at 67; C.C.P. § 425.16(b)(2).) The plaintiff must show that there is admissible evidence which, if credited, would be sufficient to sustain a favorable judgment. (McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 108.)

Here, Plaintiffs assert a claim for libel per se against Defendant in their first cause of action.

Libel is a false and unprivileged publication by writing…which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation. (Cal. Civ. Code § 45.)

“Libel per se is distinguished from libel per quod in Civil Code section 45a (Citation): ‘A libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact, is said to be a libel on its face. Defamatory language not libelous on its face is not actionable unless the plaintiff alleges and proves that he has suffered special damage as a proximate result thereof…’” (Barnes-Hind, Inc. v. Superior Court (1986) 181 Cal.App.3d 377, 382.)

Plaintiffs are correct that the statements at issue (see Compl. ¶ 12(a), 12(b)) clearly convey that Plaintiffs cheated on their taxes. Thus, Plaintiffs’ argument that these statements “obviously would make it harder for Plaintiffs to sell their services, and thus injures Plaintiffs in their profession” has merit. Accordingly, such statements would be libelous per se. Defendant does not dispute that these statements could reasonably be understood to be assertions of fact or that they would be injurious to Plaintiffs. Rather, Defendant asserts Plaintiffs’ libel claim fails because she has demonstrated that the defense of truth and the common interest privilege apply. For the reasons discussed below, the Court finds that Defendant’s evidence fails to defeat Plaintiffs’ claims as a matter of law.

Truth as a defense: “Truth, of course, is an absolute defense to any libel action.” (Campanelli v. Regents of Univ. of Cal. (1996) 44 Cal.App.4th 572, 581-582.) Defendant’s evidence does not establish the truth of the at issue statements.

Moreover, in Plaintiffs’ opposition, Williams attests that the statements at issue are false. (Williams Decl., ¶¶ 5-7.) In ruling on an anti-SLAPP motion, the court “accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law.” (Baral, supra, 1 Cal.5th at 385.) The court does not resolve evidentiary conflicts. (Id. at 386.) Accordingly, the Court finds the pleadings and evidence in the record insufficient to establish that the defense of truth applies to Plaintiffs’ claims.

Common Interest Privilege: The common interest privilege “extends a conditional privilege against defamatory statements made without malice on subjects of mutual interest. If malice is shown, the privilege is not merely overcome, it never arises. However, if the privilege does arise, it is a complete defense.” (Hailstone v. Martinez (2008) 169 Cal.App.4th 728, 739-740) (Internal citations omitted.)

Here, while it is true that potential consumers of Plaintiffs’ towing services clearly had an interest in the information which Defendant disseminated, Defendant failed to show a mutual interest between these potential consumers and Defendant. While she may have a general interest in Plaintiffs’ business as she argues in her Reply brief, the Court finds this to be insufficient to demonstrate a mutual interest in the specific concern related to Plaintiffs’ specific services. “The word ‘interested’ as used in the statute refers to a more direct and immediate concern. That concern is something other than mere general or idle curiosity[.]” (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 914.)

Defendant also offers no evidence to show that she shares a close relationship with these potential consumers such that a mutual interest can be inferred. (See Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 727; see also Kashian, supra, 98 Cal.App.4th at 914.)

Accordingly, the Court finds Defendant has failed to show that the common interest privilege applies.

Thus, Plaintiffs have met their burden of demonstrating a probability of prevailing on their first cause of action for libel per se. Accordingly, the motion is DENIED as to the first cause of action.

Accordingly, the Motion is DENIED.




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Aaron Morris, Attorney
Aaron Morris
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