Departing From Analysis in 2019 Opinion, Justice Liu Writes That Context, Not Just Content, Must Be Examined in
Determining, for Purpose of Anti-SLAPP Statute, If Speech Is on Either a ‘Public Issue’ or ‘Issue of Public Interest’
By a MetNews Staff Writer
Context—not just content—matters in determining whether speech is protected under the anti-SLAPP statute, the California Supreme Court held yesterday, backtracking on what it said in a 2019 opinion.
In that opinion, FilmOn.com Inc. v. DoubleVerify Inc., then-Justice Mariano-Florentino Cuéllar set forth two steps in determining whether the “catchall provision” of the Double Verify anti-SLAPP statute, Code of Civil Procedure §425.16—“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”—applies. He wrote:
“First, we ask what ‘public issue or [ ] issue of public interest’ the speech in question implicates—a question we answer by looking to the content of the speech.”
Div. Five’s Opinion
It was that language that prompted the majority of Div. Five of this district’s Court of Appeal to conclude on Feb. 28, 2020, that picketers at the office, then at the home, of executive Gregory Geiser did not enjoy the protection of the statute, affirming a decision by Los Angeles Superior Court Judge Armen Tamzarian.
The demonstrators were protesting the impending eviction of Mercedes and Pablo Caamal from a home that had been owned by Mercedes Caamal and had been purchased at a foreclosure sale Geiser’s company, Wedgewood LLP. At Geiser’s home, an estimated 25-30 picketers chanted:
“Greg Geiser, come outside! Greg Geiser, you can’t hide!”
Writing for Div. Five’s majority, Justice Dorothy Kim said:
“The only evidence of the specific content of the speeches during the demonstration at plaintiff’s residence was that the demonstrators demanded plaintiff personally come out of his home.”
The justice declared:
“Applying the first part of the catchall provision analysis, we conclude that defendants’ demonstrations at Wedgewood’s office building and plaintiff’s residence focused on coercing Wedgewood into selling back the property to Ms. Caamal at a reduced price, which was a private matter concerning a former homeowner and the corporation that purchased her former home and not a public issue or an issue of public interest.”
Kim was joined by Justice Carl H. Moor; Justice Lamar Baker concurred and dissented.
At issue was Tamzarian’s denial of attorney fees to the Caamals and one other protestor, Peter Kuhns, Los Angeles director of the Alliance of Californians for Community Empowerment. Geiser petitioned for a civil harassment restraining against them; they filed an anti-SLAPP motion; Geiser dropped his petition; the defendants claimed entitlement to the fees as victors on the anti-SLAPP motion; Tamzarian ruled against them, saying they would have lost that motion.
Supreme Court Opinion
Div. Five initially affirmed Tamzarian’s order on Aug. 30, 2018, but the California Supreme Court on Nov. 14, 2018, granted review, then, on Sept. 11, 2019, shot the case back to Div. Five with instructions to reconsider the matter in light of the decision in FilmOn. Yesterday, however, it explained in an opinion by Justice Goodwin H. Liu that it wasn’t intended that the first step of the analysis prescribed in FilmOn be followed as articulated by Cuéllar.
“To the extent that part of our opinion in FilmOn suggests the first-step inquiry focuses on ‘the content of the speech’…without consideration of its ‘context’…, it is not controlling because that issue was not presented in FilmOn…,” Liu said, reciting the rule that “cases are not authority for propositions not considered.”
In FilmOn, he explained, “we assumed without deciding that the speech at issue did implicate issues of public interest.”
The circumstances surrounding the demonstrations “give rise to a reasonable inference that the demonstration implicates controversial real estate practices that many individuals and communities find destabilizing—unquestionably an issue of public interest,” Liu reasoned.
He set forth this holding:
“…FilmOn’s first step is satisfied so long as the challenged speech or conduct, considered in light of its context, may reasonably be understood to implicate a public issue, even if it also implicates a private dispute. Only when an expressive activity, viewed in context, cannot reasonably be understood as implicating a public issue does an anti-SLAPP motion fail at FilmOn’s first step.”
The second step articulated by Cuéllar was: “[W]e ask what functional relationship exists between the speech and the public conversation about some matter of public interest.”
(He added: “It is at the latter stage that context proves useful.”)
Liu said the demonstrations did contribute to a public debate, pointing out:
“[T]he demonstration was not only about the dispute over the Caamals’ long-term residence, but also about broader issues concerning unfair foreclosures and evictions. While the protest might have served the purpose of facilitating a repurchase of the property, as the Court of Appeal supposed, it also served to draw attention to the alleged unfairness of the business practices by which the Caamals were foreclosed upon and evicted.”
Liu comes came to saying that the two-step analysis devised by Cuéllar in determining whether the first prong of the anti-SLAPP statute (protected speech) is satisfied should be ignored. He remarked:
“Finally, we observe that our analysis here at FilmOn’s second step overlaps with our analysis at the first step. Many of the same contextual considerations that compel us to conclude that the protest implicated public issues also compel us to conclude that the protest furthered public discussion of them. In cases like this one, it may be more efficient to look to the whole context from which the conduct underlying the lawsuit arises, rather than attempting to parse which considerations fall under which of FilmOn’s two steps.”
The case is Geiser v. Kuhns, 2022 S.O.S. 4156.
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