Metropolitan News-Enterprise


Tuesday, July 12, 2011


Page 1


C.A. Revives Anti-SLAPP Bid Over Failed Property Sale

Owner Says Buyers Balked When Tenants Told Them About Sex Offender Neighbor


By SHERRI M. OKAMOTO, Staff Writer


A landlord’s lawsuit against her tenants for interfering with the prospective sale of the property after the lease expired by informing the would-be buyer that a registered sex offender lived across the street arose from acts in furtherance of the tenants’ right of free speech in connection with an issue of public interest, the Sixth District Court of Appeal ruled yesterday.

The justices concluded Stephen Cooper’s disclosure about the nearby offender “directly implicated issues concerning the protection of people, especially children…that would be of interest to most people, especially those who are living in or considering moving to the area.”

Cooper and his wife had leased a house in Santa Clara county from Sandra Cross Shortly before the lease was set to expire, Cross claims she informed the Coopers of her intent to sell the house.

She alleged the Coopers responded with a “threat, designed to cause me fear, that prospective buyers would be told about the location of specific registered sex offenders” unless she provided the Coopers with free rent for a month.

Cross said she entered into a sales contract with a prospective buyer, and after she declined to waive the Coopers’ rent, the Coopers informed the buyer’s agent that a registered sex offender lived close by, which caused the buyer to back out of the deal.

In her complaint, Cross asserted causes of action for breach of a residential lease agreement, breach of the implied covenant of good faith in the lease agreement, intentional interference with that purchase contract, and intentional and negligent interference with prospective economic relations.

Cooper filed a special motion to strike the complaint under Code of Civil Procedure Sec. 425.16. He admitted talking to the buyers’ agent, but insisted he only offered this information because the risk to children posed by the proximity of the sex offender, which he contended, was a matter of public interest.

Santa Clara Superior Court Judge Kevin J. Murphy disagreed and denied Cooper’s motion. Murphy found Cooper’s conduct did not qualify for protection under the anti-SLAPP statute because there was no evidence of any ongoing controversy, dispute, or discussion about the location of the offender.

Presiding Justice Conrad L. Rushing, however, said Murphy took too narrow a view of the applicable law, in his decision for the appellate court.

Rushing noted that Sec. 425.16 does not define “public interest” or “public issue,” and remarked that these terms “are inherently amorphous and thus do not lend themselves to a precise, all-encompassing definition,” but it is “obvious” that “preventing child sexual abuse and protecting children from sexual predators are issues of widespread public interest.”

He also took support for such an interpretation based on the Legislature’s statements of intent in enacting Megan’s Law and the Sex Offender Punishment Control and Containment Act of 2006, which Rushing said, “reflect heightened concern about the potential dangers posed by convicted sex offenders and strong and widespread public interest in knowing the location of registered sex offenders.”

The justice reasoned accordingly that “insofar as Cooper’s disclosure served those interests by alerting prospective buyers of the potential risk to children posed by a registered sex offender who lived nearby, his conduct involved a private communication directly related to an issue of considerable interest to the general public and qualify for anti-SLAPP protection.”

Rushing further posited that “[e]ven if we viewed Cooper’s conversation as a private communication of limited interest to only those living in or moving into the neighborhood,” it would still qualify for anti-SLAPP protection since it was made in the context of an “ongoing controversy, dispute, or discussion.”

Since a sex offender “has an ongoing, annual, and life time duty to register his or her residence with authorities,” Rushing said, this “continuous access to and dissemination of information about the presence of a registered offender in the area represents ongoing ‘discussion,’ albeit a cyber discussion, between local authorities and local residents about that particular offender.”

The justice also said Cross failed to satisfy her burden to conclusively establish her claim that Cooper committed attempted extortion or that Cooper’s use of the offender’s information constituted misuse of the Megan’s Law website.

He emphasized that the use of the website “to protect a person at risk,” is a statutorily authorized use, and thus “authorizes disclosure not only when one provides the information to a mother who is standing in front of her house with a small child in her arms but also where one provides information with a reasonable and good faith belief that doing so will help protect another person and intending that the information do so.”

Justices Eugene M. Premo and Franklin D. Elia joined Rushing in his decision.

The case is Cross v. Cooper, H033164.


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