Monday, March 23, 2020
Rejects Judge Barbara Meiers’s View That Public Interest in Topic of Violence Against Women Renders Contention of Physical Abuse Protected Speech, for Anti-SLAPP-Motion Purposes
By a MetNews Staff Writer
Div. Three of the Court of Appeal for this district has reversed an order granting a special motion to strike a portion of a complaint for slander which alleges that the defendant told at least one person that the plaintiff had physically abused his former girlfriend, holding that the trial court erred in ruling that the statement was protected speech.
Justice Halim Dhanidina of Div. Three wrote the opinion, which was filed Thursday and not certified for publication. It reverses an order by Los Angeles Superior Court Judge Barbara Ann Meiers.
Meiers declared on Aug. 15, 2018, that the first prong of the anti-SLAPP statute—protected activity—was satisfied because the topic of violence against women is of public interest and discussion should be encouraged. She said that the second prong, a showing by the plaintiff of a probability of prevailing on the merits, was also met, basing that call on declarations of the plaintiff’s ex-girlfriend, Maria Fedorova, and others, and the file in a Los Angeles case in which Fedorova obtained a domestic violence restraining order.
The judge also found that other purported statements in May 2018 by defendant Novel Jannusi concerning plaintiff Thomas A. Saunders IV—that he had beaten at least one other girlfriend and hit women with sticks—were protected. Meiers did not, however, order references to those alleged utterances excised from the complaint because she determined that the second prong of the statute, a showing by the plaintiff of a probability of prevailing on the merits, was not met because it was unclear whether Jannusi had made such assertions.
The anti-SLAPP statute, Code of Civil Procedure §425.16, says, in its broad “catch all” provision, relied upon by Jannusi:
“A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”
Meiers said in her ruling:
“The defendant’s anti-SLAPP motion is granted to the extent that the Complaint relies upon allegations to the effect that the defendant committed slander by stating that the plaintiff had beaten his girlfriend, Maria Fedorova, or words to that effect but not as to allegations attributed to the defendant with regard to the plaintiff having also beaten other women ‘with a stick.’ ”
In concluding that the speech Saunders complained of is protected, Meiers said:
“[I]t is undeniable that now, in the words of the statute, there is a widespread ‘public issue’ and concern about the extent of violence against women, who is committing it, where it is being committed, etc. The statute has no limitation in that, on its face, it is sufficient if it is ‘speech in connection with a public issue.’ To say that acts of violence against women do not meet that test because where such acts occur very few people are involved, would be to nip in the bud all of the efforts now in the forefront of a women’s movement in this area to both gather information and to publicize this problem because by their very nature acts of violence and other forms of harassment against women are without question virtually always going to take place in a one to one context. Yet speaking out on such matters must now be protected, at least to prevent the oppression potential of retaliatory lawsuits to chill expression in this area.”
Actions Involving Celebrities
Meiers made note of recent allegations of sexual misconduct on the part of various celebrities, the uninhibited widespread discussion that is occurring as to those matters, and what she said was a need for victimized women preyed upon by non-celebrities to step forward, undeterred by the prospect of a retaliatory lawsuit. She said:
“Are we to have one rule that speaking out as to alleged sexual misconduct of Harvey Weinstein or Kevin Spacy or Charlie Rose is protected speech, even though the average person in a local community are not likely to ever have any dealings with them, while speaking out as to the same conduct by others is not? This court thinks that the public interest in this area is no longer present just because of a public curiosity about the conduct of public figures and celebrity gossip. It is clearly now a subject of national concern in and of itself, with a call now having been made to all women who have suffered such conduct directed towards themselves to speak out wherever they are.
“Overall, this court is of the view that this is an area in which the public ‘at large’ not only has an interest, but where it needs to be informed, and that all potential victims also need to be put on alert as members of that public to whatever extent is possible to the conduct of potential serial violators. Were information released and allegations with respect to such conduct disseminated among parents at a school after one child is molested, even by gossip, it might prevent the subsequent molestation of many others. Accordingly, the court finds the discussion of such matters and allegations with regard to acts of violence and harassment against women and others similarly situated to be ‘protected activity.’ ”
Dhanidina, in his opinion reversing Meiers’s order, pointed to the California Supreme Court’s decision last year in Wilson v. Cable News Network, Inc. in which it was held that the “catchall provision” in §425.15 “must show not only” that the defendant’s “speech referred to an issue of public interest, but also that its speech contributed to public discussion or resolution of the issue.”
“Considering the audience and speaker, the alleged statements here were made orally and in private to no more than a few people, who are friends or acquaintances of Saunders only. And, Saunders is not a public figure….Saunders was not in the middle of a particular public controversy, let alone one about violence against women, and the public is not fascinated by him….Jannusi offers no evidence that Saunders was known to the public or had the public’s attention. His use of an Instagram account in pursuing his photography business does not, ipso facto, put him in the public eye….Therefore, the alleged statements do not concern a person in the public eye or conduct that could directly affect large numbers of people beyond the participants of the May 2018 conversation….
“The trial court assumed that the statements would necessarily be broadcast to large numbers of people because Saunders sued to protect his reputation. Were that true, then every defamation action would be strikable under the anti- SLAPP statute….Thus, the elements of slander were met here as soon as [declarant Narinder] Singh heard Jannusi allegedly utter the statements. No further broadcasting was necessary for Saunders to sue.”
“[T]he record contains no evidence that Jannusi made the statements as part of the public discourse. Jannusi’s alleged statements did not advance any public conversation about, or resolution of, the issue of domestic violence; the comments were intended simply to inform Saunders’s associates about Saunders’s misconduct. Thus, the context of the alleged statements—made in private to an audience of one, about a private person, that did not refer even tangentially to a public discussion about the problem of domestic violence in our society, let alone further the public discourse about it.”
The case is Saunders v. Jannusi, B292287.
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