C.A. Orders Reinstatement of Lawsuit by Man Accused by Singer of ‘Predatory’ Conduct
Acting Justice Kwan Says Trial Court Erred in Granting Anti-SLAPP Motion Based on Remarks in Private Email
By a MetNews Staff Writer
A defamation action by a record producer against singer/songwriter Noël Wells based her accusing him, in a private email, of “predatory” conduct toward her when she was using his recording studio was not a SLAPP, the Court of Appeal for this district held Friday, reversing an order granting a special motion to strike.
Los Angeles Superior Court Judge Ruth Kwan, sitting on assignment, wrote the unpublished opinion for Div. Two reinstating Chris Nelson’s suit against Wells, a former Saturday Night Live cast member.
Nelson’s Dec. 17, 2020 complaint alleges:
“In or about 2020, Defendant Wells intentionally and willfully contacted a music artist manager (Tom Wironen of Friendly Announcer) with whom Plaintiff had a working, professional relationship stating falsely that Plaintiff committed an ‘incredibly predatory move on [her].’ Defendant Wells also stated falsely that Plaintiff exhibited ‘incredibly predatory behavior...toward young females including young female musicians.’ In making the false, defamatory, and misleading statements, Defendants Wells intended to interfere with and damage Plaintiffs business and working relationship with the music manager.”
In her motion under the anti-SLAPP statute, Code of Civil Procedure §425.16, Wells said:
“This case arises out of a single e-mail between Defendant Noel Wells (“Ms. Wells”)—successful singer-songwriter, director, and actress—and Big Thief—a successful indie rock band—about who Big Thief should work with in producing and recording new music. Knowing how important a recording studio is to the creative process of making music. Big Thief openly solicited from their fans, through Instagram. feedback about who to work with. Ms. Wells, a fan of Big Thief, then responded to that invitation and e-mailed the band about her experience working with Plaintiff Chris Nelson and his studio space. From one artist to another. Ms. Wells told Big Thief:
“I am taking a big swing sending this email, and not knowing the current relationship you have toward that studio space. I feel it’s important as a creative to let you know about that recording environment and what happened to me in case it informs your recording situation in the future.”
The “incredibly predatory behavior” she described was his proposing that in exchange for her continued use of his studio—initially at no cost and then with her paying his studio engineer—he receive credit with her to the lyrics of her songs, which she wrote. Also, he proposed acting as her producer of her albums and receiving 50 percent of the royalties.
2019 Decision Cited
Wells’s motion cites the 2019 Court of Appeal decision in Symmonds v. Mahoney. Justice Helen Bendix of this district’s Div. One wrote that the decision of a singer/songwriter not to hire a drummer “was protected conduct” under §425.16 because music is a form of expression and “[a] singer’s selection of the musicians that play with him both advances and assists the performance of the music, and therefore is an act in furtherance of his exercise of the right of free speech.”
“Like the decision by the rock band not to hire a drummer in Symmonds, Big Thief’s decision on about who they should hire and work with as a producer, then decision to solicit public commentary and feedback, and Ms. Wells’s communication with Big Thief about whether Big Thief should work with Plaintiff are all protected activities. This is particularly true since Ms. Wells’s e-mail was intended to assist the band Big Thief with deciding what studio to record their music.”
The motion was under the “catchall” provision of §425.16: “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.”
The motion was granted by Los Angeles Superior Court Judge Gregory Alarcon, who found that the action was based on protected conduct on the part of Wells, satisfying the first prong of “425.16. He said in his Jan. 5, 2022 order, citing Symmonds:
“Generally, artistic and literary expression are protected by the First Amendment.”
He went on to say:
“The court finds Symmonds instinctive. Plaintiff identifies that Symmonds involved the act of not hiring a musician, while this case involves the act of speaking falsely about a music producer. The action here is more removed from the ‘advance[ment] or assist[ance]’ of the creation of music. However, though more attenuated, it is still linked to the exercise of free speech rights. It is irrelevant that Plaintiff correctly shows that Symmonds involves different facts. The key is the underlying legal principles and purposes, which similarly apply here.”
“The court does not need to examine Defendant’s alternative argument to satisfy the first prong. However, the court does so as follows for the purposes of an appeal.”
Wells maintained that the matter is one of public interest. Alarcon disagreed, saying that Nelson is not in the public’s eye, the email did not relate to an ongoing controversy, and the email was a private one.
Proceeding to the second prong of the statute—probability of prevailing on the merits—Alarcon said that Nelson had not made the requisite showing.
In her opinion reversing Alarcon’s order, Kwan said:
“The trial court found, as we do, that Wells’s e-mail did not involve a public issue or matter of public interest. However, the court mistakenly viewed artistic speech as an alternative to the element of ‘public interest.’ This was legal error. Application of section 425.16, subdivision (e)(4) is expressly limited to issues of public interest.”
She noted that Wells “relies on ‘artistic speech’ cases involving ‘casting decisions’ in an artistic endeavor,” one of which was Symmonds. Kwan wrote:
“Unlike the defendants in the cases cited above, Wells was not creating music with Nelson or Big Thief when she sent her disparaging e-mail. She was not taking constitutionally protected steps to advance her artistic endeavors, nor was she employed by Big Thief to help them create music. This is not akin to a casting decision by a person or entity who is creating and presenting shows to the public. Her unsolicited effort to weigh in on Big Thief’s future workplace is not itself creative or artistic speech. Her private message must meet the requirement that it involve a public issue or matter of public interest…; however, the e-mail did not contribute to any public debate of widespread interest.”
The case is Nelson v. Wells, B320223.
Attorneys on appeal were Bradford G. Hughes, Richard H. Nakamura, Jr. and Tiffany B. Hunter of the downtown Los Angeles firm of Clark Hill for Nelson and Jason L. Liang and John K. Ly of the downtown Los Angeles firm of Liang Ly LLP for Wells.
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