The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Murray v. Powers, decided today by the California Court of Appeal, in an opinion by Judge Truc Do, joined by Presiding Judge Judith McConnell and Judith Haller:
[Cody] Powers was in a romantic triangle with Melodee Eva-Zacchara and Sean Murray. On August 8, 2017, Eva-Zacchara and Murray had a domestic dispute. Powers reported the incident to the Oceanside Police Department.
Eva-Zacchara and Murray were never able to agree about what happened on August 8. Eva-Zacchara claimed Murray had assaulted her, which Murray disputed. However, when she sent Murray what appeared to be a police report supporting her version of events, Murray grew concerned. The police report referred to Murray as a "suspect," indicated his crimes had been substantiated, and appeared to have been circulated to other law enforcement agencies. Eva-Zacchara made similar claims to others about Murray's criminal behavior and law enforcement entanglements.
These claims harmed Murray's personal and work relationships and caused him to abandon his life in California. After Murray relocated to another state, he contacted the Oceanside Police Department. He then learned the police report he received from Eva-Zacchara had been altered to support her version of events. The real police report concluded "no assault could be substantiated."
Murray sued Eva-Zacchara and Powers for defamation and related torts. He alleged that Powers, motivated by his continued romantic interest in Eva-Zacchara, had assisted her in altering the official police report and disseminating its false contents to others….
The Court of Appeal's conclusion: Powers couldn't get the case dismissed under the California anti-SLAPP statute, which covers "(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."
Powers never argued or explained how this alleged conduct was protected by the anti-SLAPP statute. He simply failed to grapple with the complaint's actual allegations. Instead, he chose to portray the complaint as though its claims were based on his phone calls to the police, or false statements made during those calls. Neither of these positions accurately reflected the allegedly harmful conduct for which he was being sued….
While the complaint does refer to his communications with the police on August 8 and August 29, these allegations appear as factual background and do not serve as the basis for the claims against him.
In his reply brief, Powers argues that without his August 8 and August 29 phone calls to the police, there would have been no "'true police report,'" and "you cannot have a 'forged' police report without there being a 'true police report.'"… [This] logic strains credulity….
Next, Powers argues that the altered police report and emails to others about the altered report were communications about domestic violence, "an issue of public interest" …. [But] Murray and Eva-Zacchara are not, so far as the record reveals, public figures. Powers's alleged role in assisting Eva-Zacchara in altering an official police report to make it appear as though Murray was suspected of assault and abduction, if true, was part of a private dispute. The emails to Murray's acquaintances were not part of a larger public conversation about issues of public concern. Although these communications may have been significant to the specific individuals involved, they were not matters of public interest.
Instead, this case is more like Weinberg v. Feisel (Cal. Ct. App. 2003), on which Murray relies. In Weinberg, a token collector was sued for falsely accusing his rival of theft in communications to a group of fellow token collectors. The court rejected the defendant's argument that his accusations were protected because they related to an issue of public interest. The court reasoned that "a matter of concern to the speaker and a relatively small, specific audience is not a matter of public interest." That description applies equally to the communications at issue in this case….
Moreover, in addition to requiring "an issue of public interest," subdivision (e)(3) also requires a "public forum," an element Powers fails to address in his opening brief on appeal. In his reply brief, Powers argues for the first time in this case that the "email blast" Eva-Zacchara sent in August 2018 satisfies the "public forum" requirement because it was an Instagram "posting," which he claims is an internet message board "'open to the public.'"
We reject this newfound theory…. Although there is some indication in the record Eva-Zacchara sent her "email blast" message to around 30 people via Instagram, Powers does not cite, and we do not find, any record evidence indicating the message was publicly posted….
Next, Powers argues his allegedly defamatory acts are protected under subdivision (e)(4) of section 425.16. He maintains that Terry v. Davis Community Church (Cal. Ct. App. 2005), which held that "private conversations about public issues" are protected under subdivision (e)(4), supports this conclusion…. [But] Terry involved a defamation suit arising from a church report about a youth group leader who had a "secretive and inappropriate relationship" with one of the youth group's minor members. The report was discussed in church meetings with concerned parents who claimed they had a right to know about the investigation. The Court of Appeal held these "communications clearly involved issues of public interest, because they involved the societal interest in protecting a substantial number of children from predators[.]"
Simply put, this case is not Terry. Eva-Zacchara's version of the police report, doctored to reflect that an assault had been substantiated when it had not, is not comparable to the legitimate church report at issue in Terry. Nor was the "email blast" in which Eva-Zacchara complained about Murray to mutual acquaintances anything like the meetings in Terry in which concerned parents discussed how to protect "a substantial number of children from predators." We have reviewed the additional authorities cited in Powers's reply brief and conclude they are likewise distinguishable. (See, e.g., Cross v. Cooper (Cal. Ct. App. 2011) [disclosure about the location of a registered sex offender residing in a neighborhood implicated the protection of "people, especially children, from sexual offenders … issues that would be of interest to most people"].) It follows that Powers's role in assisting Eva-Zacchara in making these defamatory communications did not involve a societal interest and did not fall within subdivision (e)(4)….
Finally, Powers argues the trial court erred in denying his motion based on the complaint's allegation he assisted in "forging" or altering a police report. He points to his declaration in which he denied altering the report or assisting Eva-Zacchara in doing so. He argues it was error for the trial court to conclude he had engaged in speech activity that was illegal when the illegality was not uncontested.
Powers misapprehends the relevant rule. True, there is a line of decisions in which courts have held anti-SLAPP protections are unavailable to defendants whose exercise of free speech rights involved conduct that was illegal as a matter of law. For example, in Flatley v. Mauro (2006), an attorney who threatened to sue and expose a celebrity for alleged rape unless the celebrity paid a seven-figure settlement was held to be precluded from relying on the anti-SLAPP law to strike the celebrity's subsequent claims against him, because the attorney's communications to the celebrity were extortionate as a matter of law. Under Flatley and its progeny, a plaintiff can defeat an anti-SLAPP motion only by establishing conclusively that the protected speech activity was illegal.
What Powers fails to recognize, however, is that this rule applies only where the assertedly illegal activity is otherwise protected by the anti-SLAPP statute. Here, Powers never managed to establish that the activities giving rise to the claims against him fell within subdivision (e) of section 425.16. The trial court denied his motion because he failed to show his allegedly injurious speech activities were protected, not because they were illegal. The analysis required by Flatley and progeny never came into play.
To get the Volokh Conspiracy Daily e-mail, please sign up here.