Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. 30-2010-00351170, James Di Cesare, Judge.
Inglis, Ledbetter & Gower, Richard S. Gower, and Gregory J. Bramlage for Defendant and Appellant.
Law Offices of Mary B. Erickson, and Mary B. Erickson for Plaintiffs and Respondents.
OPINION
O’LEARY, J.
The parties in this case have been neighbors since 1997. Their relationship soured in 2003, when Soheila Hosseini and Fred Sahafi built a wall that encroached upon John Coon’s property and required the removal of several trees. The wall was removed, Coon was paid some damages, and the construction of a different wall has been the subject of more rancor between these neighbors. This appeal relates to the March 2010 lawsuit Hosseini and Sahafi filed against Coon alleging libel and slander based on the contents of two e-mails Coon sent to several government officials in the City of Mission Viejo (City). Coon appeals from an order denying his special motion to strike under the anti-SLAPP statute, Code of Civil Procedure section 425.16. We conclude one of Coon’s e-mails giving rise to the defamation action fell within the purview of the anti-SLAPP statute. However, the trial court correctly denied the anti-SLAPP motion because one of the e-mails was not related to any issue under consideration or review by the City, and Hosseini and Sahafi could demonstrate a probability of succeeding on the merits.
All further statutory references are to the Code of Civil Procedure, unless otherwise indicated. “A plethora of appellate litigation has made the SLAPP acronym a household word—at least in legal households. SLAPP stands for strategic lawsuit against public participation.” (Paterno v. Superior Court (2008) 163 Cal.App.4th 1342, 1345, fn. 1.)
I
In their complaint, Hosseini (an attorney) and Sahafi (a physician) alleged they were married and have two young children. Hosseini and Sahafi, who were born in Iran and are American citizens, asserted that since moving to the neighborhood Coon has been rude and insulting, and he has made repeated racial slurs and ethnic epithets. They asserted Coon, a Caucasian physician, calls them “‘Taliban’” and has made numerous written complaints to the City about a retaining wall built on their land.
In their complaint, Hosseini and Sahafi asserted Coon sent an e-mail, dated February 13, 2009, to the City containing the statement “‘these people are reprobates, pathological liars and dangerous.’” In the same e-mail, Coon wrote Hosseini and Sahafi “‘have leveled serious threats against us and “know people who can deal with us.”’” Hosseini and Sahafi believe this statement is an “allusion to terrorists especially since Coon has made racial slurs in the past regarding [Hosseini and Sahafi] and the “‘Taliban.’” Coon reported his wife had called the police because she was afraid. Hosseini and Sahafi claim police records do not support this claim. Moreover, the assertion they made threats or know people who could harm the Coons was based entirely on speculative hearsay.
Coon also sent an e-mail dated February 2 to the City referring to Sahafi as follows: “This man is a pathological liar. Trust nothing that comes out of his mouth, instead watch his actions.” Coon stated his property has been damaged and he is unable to sell it, however, Hosseini and Sahafi believe this is untrue because they have offered to purchase the house and Coon has not listed his home with a realtor. Hosseini and Sahafi alleged that due to Coon’s untrue statements regarding the retaining wall, the City filed an action against them regarding the property. They sought $25,000 damages for defamation, plus $1,000,000 punitive damages.
Coon filed a motion to strike the complaint under the anti-SLAPP statute. He asserted the alleged defamatory e-mail statements constituted protected activity because the statements were made in furtherance of his constitutional right to petition and of free speech. Coon also asserted the acts upon which the libel cause of action were based are absolutely privileged by Civil Code section 47, subdivision (b), as communications made in an official proceeding authorized by law. Hosseini and Sahafi filed an opposition.
The parties discussed the following undisputed circumstances, occurring before and after Coon sent the e-mails. Hosseini and Sahafi’s property shares a boundary line with Coon’s property. This boundary slopes downward to Coon’s property. In 2003, Hosseini and Sahafi removed several trees and built a wall that encroached on Coon’s property. When Coon complained, they removed the wall and paid him $2,500. When they attempted to build a new retaining wall, the City issued six stop work notices (dated between November 11, 2003, to December 22, 2003) telling Hosseini and Sahafi they must stop construction and obtain a building permit before erecting a wall over six feet tall. Coon admitted he actively sought support from the City to enforce the stop work notices.
In January 2007, Hosseini and Sahafi received a seventh stop work notice. In violation of this notice, they began construction of a retaining wall at the base of the slope separating the two properties. Coon alleged they dug into the slope that supported his home, and as a result, his property was destabilized.
In June 2008, Hosseini and Sahafi began demolishing part of a seven-foot retaining wall. The City issued an eighth stop work notice stating, “STOP WORK [¶] Please be advised that you are doing work that requires approvals from the proper City of Mission Viejo Departments. [¶] The retaining wall needs to be approved and the building material needs to be kept off [the] public right of way.” Soon thereafter, Coon engaged in a more aggressive campaign to have the City enforce its rules and regulations with regard to construction of the retaining wall.
In October 2008, Coon met with several city officials regarding the wall, including Dennis Wilberg, City Manager, William Curley, City Attorney, Charles Wilson, Director of Community Development, Elaine Lister, City Planning Department and Dennis Bogle, Building Official. Coon’s February 2 e-mail (the basis for the defamation lawsuit) was addressed to all the above government officials (except Lister). It stated, in relevant part, “You wrote him his [ninth] stop work notice, correct? [¶] We need an immediate intervention and assurance that he will not remove those palms and expose an additional stretch of unsupported dirt, further threatening the stability of our property. [¶] You see what his game is – defy the City, remove the palms and then he has no choice but to build the additional illegal retaining wall that he has sought all along! [¶] We have entered the [eighth] month of him refusing to address the illegal [seven-foot] retaining wall that has damaged our property!!!! [¶] Please tell me you did not fall for any of the lies that spewed out of his mouth. His statements and promises are worth nothing. They are all part of his stall technique. [¶] This man is truly a pathological liar. Trust nothing that comes out of his mouth, instead watch his actions. [¶] Rain is coming again and we need to see the exposed wall of dirt shored up, NOW. [¶] The City should be outraged at this man’s defiance and recalcitrance. [¶] Please get the ball rolling on protecting our property and minimizing the City’s exposure to this fiasco. Thanks again for your time....”
On February 6, 2009, the State of California and the City filed a complaint seeking a preliminary and permanent injunction against Hosseini and Sahafi’s trust, the title holder to the property. The complaint asserted a violation of the building code and municipal code when Hosseini and Sahafi built a retaining wall over four feet in height without first obtaining the required permit and neighbor’s approval. The court granted the preliminary injunction on March 13.
On February 13, 2009, Coon wrote another e-mail to Wilson, Bogle, and Wilberg that is also the subject of the defamation lawsuit. He stated: “The police have become involved twice in the last few months. [¶] The resident of [Hosseini and Sahafi’s property] sprayed me, unprovoked, with a hose and told my beautiful wife to go ‘F-k herself.’” [¶] My wife called the police. [¶] I have been told twice by another neighbor in the past few months that [Hosseini and Sahafi] have leveled serious threats against us and ‘know people who can deal with us.’ [¶] My wife was so frightened she called the police and a report was filed with a statement made by the neighbor who first informed us. [¶] This thing has gotten out of hand and I blame a lot of it on the City who has glaring [sic] failed at enforcing their own rules, quickly and decisively. [¶] These people are reprobates, pathological liars and dangerous. John Coon.”
On March 23, 2009, Hosseini and Sahafi’s counsel, Bradley D. Pierce, sent Coon a letter and a “Neighborhood Awareness Form.” Pierce asked Coon to sign and return the form. He informed Coon they had retained an engineer to analyze the slope stability, the retaining wall, and the extension for the retaining wall. He noted Coon’s prior concerns about the need to construct a retaining wall extension for the purpose of removing a boat was no longer a real concern as the boat had been removed. Pierce stated other neighbors had signed the form and the best way to get the property cleaned up and the wall completed was to sign the form. Pierce asked Coon to state reasons if he was unwilling to sign the form, and “[m]aybe they can be addressed.” Coon would not sign the form.
The following year, on February 12, 2010, Hosseini and Sahafi filed an architectural review application with the City regarding the retaining wall. The application was scheduled for a public hearing on March 8. Coon determined the plans were deficient and misrepresented the true angle of the slope. Coon advised the City he was going to oppose the application and invited several city officials to conduct an onsite investigation. On February 25, 2010, Wilson, Lister, and two city engineers conducted an onsite inspection. Thereafter, Coon requested the hearing be rescheduled.
On March 1, 2010, Wilson advised Coon he had met with Hosseini, Sahafi, and their architect. The following day, Wilson revealed Hosseini and Sahafi had withdrawn their application and they were given 60 days to submit a new application. Six days later, Hosseini and Sahafi filed a defamation lawsuit against Coon.
After considering Coon’s anti-SLAPP motion, the opposition, and argument from the parties, the court issued a minute order denying the motion. It concluded Coon had “not demonstrated that the cause of action arises out of his exercise of protected activity. There is no dispute that [Coon] is entitled to petition the City regarding... construction of the retaining wall. There is no dispute [he] sent an e-mail on February 13, 2009, to City officials to complain about its failure to enforce its rules.... However, the e-mail also stated that [Hosseini and Sahafi] are ‘reprobates, pathological liars and dangerous.’” The court reasoned Coon did not show the libel cause of action arose under either section 425.16, subdivision (e)(1) or (2). It concluded, “[Hosseini and Sahafi] do not dispute that the issue regarding the retaining wall was being considered by the City. However, [Coon] failed to show that his statements that [his neighbors] are ‘reprobates, pathological liars and dangerous’ were made in connection with the issue of the retaining wall. [Citation.]”
II
A. General Principles
“[A] SLAPP suit is ‘a meritless suit filed primarily to chill the defendant’s exercise of First Amendment rights.’ [Citation.]” (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 783 (Dove Audio).) To prevent SLAPP suits, section 425.16, subdivision (b)(1), provides, “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 or 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.” Section 425.16 is to be “construed broadly.” (§ 425.16, subd. (a).)
Consideration of a section 425.16 special motion to strike anticipates a two-step process. “First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains were taken ‘in furtherance of the [defendant]’s right of petition or free speech under the United States or California Constitution in connection with a public issue, ’ as defined in the statute. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) We review a trial court’s ruling on a special motion to strike de novo. (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 675 (Peregrine).)
B. Step One: Arising Out of Protected Activity
“[T]he statutory phrase ‘cause of action... arising from’ means simply that the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech. [Citation.] [T]he critical point is whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech. [Citations.] ‘A defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause fits one of the categories spelled out in section 425.16, subdivision (e)....’ [Citations.]” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.)
Section 425.16, subdivision (e), lists four categories: “As used in this section, ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (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.” The first two subdivisions relate to the right to petition on any topic, and the second two relate to free speech relating to issues of public interest.
Coon recognizes it was his burden to show his conduct fell within one of the four categories described in subdivision (e) of section 425.16. Coon asserted his e-mails are protected activity as he was engaged in his constitutionally protected right to petition the government for redress of grievances. (Smith v. Silvey (1983) 149 Cal.App.3d 400 [citizen cannot be enjoined by court to stop complaining about a mobile home park to various government agencies].) However, Smith is not an anti-SLAPP case, and Coon provided no case authority or reasoned argument about whether each e-mail falls under any of the four categories listed in subdivision (e).
The defamation lawsuit arises from the statements contained in two e-mails. We consider them separately because one e-mail was sent before the City initiated a lawsuit against Hosseini and Sahafi, and the other was sent after the suit was filed. We conclude, the first e-mail, sent February 2, falls under the second anti-SLAPP category which broadly covers any 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[.]” (§ 425.16, subd. (e)(2).) In this e-mail, Coon criticizes the City for issuing nine stop work notices and for failing to take any further action to stop the illegal construction. He asked the City to immediately “get the ball rolling” and protect his property and address the defiance of nine stop work notices. Coon stated Sahafi was a liar, but the comment was made in the context of whether the City would ensure the wall would be constructed with the proper permits and neighborhood approval.
Not all writings submitted to a government agency for action are protected. The statute expressly requires a nexus between the statement and an issue under “consideration or review.” (§ 425.16, subd. (e)(2).) However, at the time Coon sent his February 2 e-mail the issue of the retaining wall construction was “under consideration or review” by City officials. For months, the City had been issuing stop work notices at the construction site, and Coon had been actively seeking support from the City leaders to enforce the City’s orders. Several months prior to sending the e-mail, Coon had met with several city officials regarding the wall construction project. Soon after sending the e-mail, the City did take action by filing a lawsuit against Hosseini and Sahafi seeking preliminary and permanent injunctions.
Contrary to Hosseini and Sahafi’s contention, there did not have to be a pending hearing or official proceeding. On this point, Maranatha Correction, LLC v. Department of Corrections & Rehabilitation (2008) 158 Cal.App.4th 1075 (Maranatha), is instructive. In that case, the director of the Department of Corrections provided copies to the press of a letter he wrote to the plaintiffs terminating their contract with the state to provide telephone services to inmates. In that letter, the director stated plaintiffs had “misappropriated” state funds. Plaintiffs sued the director for defamation. The Court of Appeal, however, affirmed an order granting the director’s special motion to strike the defamation claim pursuant to the anti-SLAPP statute. In doing so, the court reasoned, “As used in section 425.16[, subdivision] (e)(2), a matter is ‘under consideration’ if it ‘is one kept “before the mind, ” given “attentive thought, reflection, meditation.” [Citation.] A matter under review is one subject to “an inspection, examination.”’ [Citation.]” (Maranatha, supra, 158 Cal.App.4th at p. 1085.) The court held plaintiffs’ right to retain revenue from inmate telephone calls was an “issue under consideration” by the director when it terminated the contract, even though no formal proceedings were involved. It expressly rejected plaintiffs’ claim that statements relating to issues under consideration by a governmental body fail to qualify for anti-SLAPP protection unless they are also the subject of “official proceedings.” (Ibid.)
In our case, Hosseini and Sahafi’s defiance of the stop work notices and failure to obtain permits were certainly issues that at the time were being given thought, inspection, and examination by the City’s building officials. Because Coon’s e-mail petitioned the City for quicker action on that same issue it contained the necessary nexus between the alleged defamatory statement and an issue under “consideration or review” as described in subdivision (e)(2) of section 425.16.
The same cannot be said for the February 13 e-mail. This e-mail was sent after the City filed its lawsuit against Hosseini and Sahafi. On its face the e-mail is not related to matters being litigated, nor remotely connected to issues about construction of the wall. Rather, Coon informed City officials that his relationship with his neighbors had deteriorated and his wife was afraid of them. He reports Sahafi sprayed him with water from a garden hose and yelled profanities at his wife. Coon’s wife called the police. Relying on hearsay, Coon warned City officials Hosseini and Sahafi were dangerous as they had made threats against him and they knew people who could inflict harm. He complained things had “gotten out of hand” and blamed this ugly development on the City’s failure to more “quickly and decisively” enforce its rules. He concluded the e-mail by calling Hosseini and Sahafi “reprobates, pathological liars and dangerous.”
None of the above statements relate to the City’s review or consideration of how the wall should be constructed, compliance with the stop work notices, or issues raised in the lawsuit concerning construction of the wall. It is simply a narration of a personal dispute between neighbors. Coon’s dismay at being sprayed with a hose and his wife’s fears relate to a private dispute about which building officials cannot and should not take action. Indeed, Coon does not ask the City officials to do anything about the perceived threats or neighborly discontent. He does not suggest the City’s lawsuit served as a catalyst for the recent police activity. He simply laments the City should have acted sooner in seeking a building injunction. This e-mail cannot be deemed another petition seeking city official action, but rather a document containing neighborhood gossip, written with the vindictive intent of damaging the reputation of his neighbors.
Coon does not suggest how his statement Hosseini and Sahafi are dangerous or reprobates or pathological liars had any nexus with an issue being reviewed or considered by the City’s building officials. As aptly stated in their opposition to the anti-SLAPP motion, Coon had a protected right to complain to the City that his neighbor did not build something properly, but he has no right to raise false allegations unrelated to the issue, such as the neighbor is a child molester or a drug addict. Such statements have no logical relevance to the official city proceedings that concerned construction of a wall, adherence to work stop notices, the lawsuit, and the preliminary injunction.
Paul v. Friedman (2002) 95 Cal.App.4th 853, cited by the trial court, is instructive. In that case, the court found that statements made as part of a harassing investigation of a stock broker’s personal life were unconnected to any issues in a pending arbitration, and so were not within the statute. It reasoned, “So far as private arbitration proceedings are concerned, the statute covers... any statement or writing ‘made in, or in connection with an issue under consideration or review by, an official proceeding or body.’ [Citation.] Paul’s tort causes of action plainly did not seek redress for any statements of Friedman’s ‘made in’ the arbitration or ‘before’ the arbitrators. [Citation.] Paul sought redress for a harassing investigation and disclosures made outside the arbitration.... Friedman had to show the suit arose from oral statements or writings ‘made in connection with an issue under consideration or review’ in the arbitration. [Citation.]” (Id. at p. 865, fn. omitted.) Paul’s lawsuit arose from a harassing investigation that extended “far beyond the scope of the issues subject to arbitration. The investigation was allegedly directed to personal matters bearing no relationship to the claims asserted in the arbitration.” (Id. at p. 866.) Thus, although Friedman’s conduct might have been “‘in connection with’” a proceeding, it was not, as subdivision (e)(2) requires, “‘in connection with an issue under consideration or review’” in that proceeding. (Id. at pp. 867, 868.)
Similarly here, Coon’s act of sending an e-mail complaining about his neighbors might have been “in connection with” his prior e-mails petitioning the City to take action against his neighbors and file a lawsuit about their illegal wall, however, none of his statements in the second e-mail were “in connection with an issue under consideration or review” by those building officials. While the first e-mail clearly contained information and statements that related to the City’s enforcement of its stop work notices, the second e-mail contained statements completely irrelevant to those issues. The apparent intent of Coon’s second e-mail was to disparage Hosseini and Sahafi’s credibility and reputation.
Although the second e-mail was not in connection with an issue under consideration or review by the City, “[w]here, as here, a cause of action is based on both protected activity and unprotected activity, it is subject to section 425.16 ‘unless the protected conduct is “merely incidental” to the unprotected conduct.’” (Peregrine[, supra, ] 133 Cal.App.4th [at p.] 672 [first prong of SLAPP analysis met where the allegations of loss resulting from protected activity were not merely incidental or collateral to unprotected activity]; see Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 104 [because the defendants’ reports to government agencies formed a substantial part of the factual basis for defamation and trade libel claims, the claims were subject to the SLAPP statute even though also based on nonprotected statements].)” (Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1551, fn. omitted.) We hold the defamation action is based on protected activity (the first e-mail) that is not merely incidental to unprotected activity (the second e-mail) and it is, therefore, subject to section 425.16. Nevertheless, we conclude the motion was properly denied because Hosseini and Sahafi demonstrated a probability of prevailing on their claim.
C. Step Two: Probability of Prevailing
“A claim for defamation, in the form of libel, can be based on ‘a false and unprivileged publication by writing... which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.’ (Civ. Code, § 45.) Statements of opinion which imply a false assertion of fact are actionable. [Citation.] In Milkovich [v. Lorain Journal Co. (1990) 497 U.S. 1, 19-20, ] the United States Supreme Court rejected the respondents’ argument that statements of opinion are never actionable, explaining: ‘If a speaker says, “In my opinion John Jones is a liar, ” he implies a knowledge of facts which lead[s] to the conclusion that Jones told an untruth. Even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact.’ On the other hand, ‘a statement of opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection.’ [Citation.]” (Overhill Farms, Inc. v. Lopez (2010)190 Cal.App.4th 1248, 1260 (Overhill).)
In determining “[w]hether a statement declares or implies a provably false assertion of fact, ” courts apply the totality of the circumstances test. (Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 385 (Franklin).) “Under the totality of the circumstances test, ‘[f]irst, the language of the statement is examined. For words to be defamatory, they must be understood in a defamatory sense.... [¶] Next, the context in which the statement was made must be considered. [Citation.]’” (Ibid.)
On appeal, Coon admits that on February 2, he told the City that Hosseini “‘is a pathological liar. Trust nothing that comes out of his mouth, instead watch his actions.’” And on February 13 Coon made the statement the police had been called and he and his wife were afraid because Hosseini and Sahafi had “‘leveled serious threats’” and they know dangerous people “‘who can deal with us.’” Coon also proclaimed, “‘These people are reprobates, pathological liars and dangerous.’” Rather than asserting these statements could never give rise to a defamation action, he instead maintains the statements are absolutely privileged under the litigation privilege Civil Code section 47, subdivision (b). We disagree.
The litigation privilege shields any “publication or broadcast” made “[i]n any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law....” (Civ. Code, § 47, subd. (b).) “‘The litigation privilege is absolute; it applies, if at all, regardless whether the communication was made with malice or the intent to harm. [Citation.] Put another way, application of the privilege does not depend on the publisher’s ‘motives, morals, ethics or intent.’ [Citation.] Although originally applied only to defamation actions, the privilege has been extended to any communication, not just a publication, having ‘some relation’ to a judicial proceeding, and to all torts other than malicious prosecution. [Citations.] Moreover, ‘[t]he litigation privilege is not limited to the courtroom, but encompasses actions by administrative bodies and quasi-judicial proceedings. [Citation.] The privilege extends beyond statements made in the proceedings, and includes statements made to initiate official action. [Citation.]’” (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 913 (Kashian).)
“If there is no dispute as to the operative facts, the applicability of the litigation privilege is a question of law. [Citation.] Any doubt about whether the privilege applies is resolved in favor of applying it. [Citation.]” (Kashian, supra, 98 Cal.App.4th at p. 913.)
As discussed above, Coon’s second e-mail discussing the state of his personal dispute with his neighbors bears no relation to a judicial or official city proceeding. Nor did it contain any statements intended to initiate official action. “Cases construing the scope of the litigation privilege embodied in... [Civil Code] section 47 have reached similar results. To be privileged under [Civil Code] section 47, a statement must be ‘reasonably relevant’ to pending or contemplated litigation. [Citations.]” (Neville v. Chudacoff (2008)160 Cal.App.4th 1255, 1266 (Neville).) “The reasonable relevancy requirement of [Civil Code] section 47 is analogous to the ‘in connection with’ standard of section 425.16, subdivision (e)(2).” (Neville, supra, 160 Cal.App.4that p. 1266.)
Like the anti-SLAPP statue, there are reasonable limits on the type and character of statements that are protected by the privilege. (Nguyen v. Proton Technology Corp. (1999) 69 Cal.App.4th 140, 147 (Nguyen).) In Nguyen, an attorney for a technology company (Proton) sent a prelitigation demand letter to another technology company (Excelsior) threatening to sue unless Excelsior, among other things, stopped improperly soliciting its customers. The letter alleged Nguyen, a former Proton employee who now worked for Excelsior was illegally soliciting Proton’s customers. Significantly, the letter also stated: “‘We think you should be aware that [Nguyen] was working for Proton under a work furlough program sponsored by the Santa Clara County Probation Department. [Nguyen] was in prison for repeatedly and violently assaulting his wife.’” Both of these statements were false. (Id. at pp. 143-144.)
Nguyen subsequently sued Proton and its attorney for libel, slander, and other related causes of action based on the statements in the demand letter. (Ngyuyen, supra, 69 Cal.App.4th at p. 145.) The appellate court reversed the trial court’s entry of summary judgment against Nguyen based on the litigation privilege. (Ibid.) The court based its holding on the requirements that, in order to be privileged, the communication must be made “‘to achieve the objects of the litigation’” and “‘have some connection or logical relation to the action.’” (Id. at pp. 146-147.) The court noted the California Supreme Court in Silberg v. Anderson (1990) 50 Cal.3d 205, 212, combined these two requirements into one: “‘The requirement that the communication be in furtherance of the objects of the litigation is, in essence, simply part of the requirement that the communication be connected with, or have some logical relation to the action, i.e., that it not be extraneous to the action. A... statement made in a judicial proceeding is not privileged unless it has some reasonable relevancy to the subject matter of the action.’ [Citation.]” (Nguyen, supra, 69 Cal.App.4th at pp. 146-147.)
The Nguyen court concluded the statements about Nguyen’s purported wife beating were not privileged. Not only was the statement incorrect, but “any ‘connection’ between such a conviction and the civil unfair competition focus of [the attorney’s] demand letter is, to be charitable about it, tenuous.” (Nguyen, supra, 69 Cal.App.4th at p. 151.) The alleged acts of unfair competition were not crimes, and “one’s proclivity to engage in such practices [unfair competition] is in no way, shape or form predictable by whether he (a) beats his wife (b) shoots at unoccupied cars, or (c) commits vandalism.” (Ibid.) The court noted “[Civil Code] section 47[, subdivision] (b) does not prop the barn door wide open for any and every sort of prelitigation charge or innuendo, especially concerning individuals.” (Id. at p. 150.) Similarly here, Coon’s prior petitions seeking action from the City on the wall’s construction did not open the barn door for spiteful e-mails simply recounting a private dispute between neighbors.
The cases cited by Coon are inapposite. In Whelan v. Wolford (1958) 164 Cal.App.2d 689, 691 (Whelan), plaintiff filed an application for a use variance to build a second dwelling. Defendants wrote to the Santa Ana Planning Commission requesting the variance be denied based on untrue statements relating to the variance such as violations of health and safety regulations and plaintiff’s disorderly house. (Id. At p. 692.) The court determined the statements were privileged under Civil Code section 47 because “[t]he right to file a written protest at a public hearing before a planning commission is the right and privilege of every property owner and resident of the city and such a protest as the one herein considered is permitted by law and necessarily related to the action before the planning commission.” (Whelan, supra, 164 Cal.App.2d at p. 694.) This case is not analogous to ours.
As discussed above, Coon’s e-mail to the building officials stating Hosseini and Sahafi are dishonest and dangerous people is not related to the action before those officials, i.e., proper and safe construction of the wall. It certainly did not qualify as a written petition or protest at a public hearing.
Similarly, the other cases Coon relies upon are inapt as they contain clear examples of privileged statements made to an official agency designed to prompt action. Passman v. Torkan (1995) 34 Cal.App.4th 607, 616, concerned a letter written to the district attorney urging criminal prosecution. Walker v. Kiousis (2001) 93 Cal.App.4th 1432, 1437, concerned a letter written to a police officer’s employer alleging misconduct and demanding “‘appropriate action up to and including termination.’”
III
The order denying the anti-SLAPP motion is affirmed. Respondent’s motion for sanctions is denied because appellant’s anti-SLAPP motion does not qualify as frivolous. (§ 128.5.) Respondents shall recover their costs on this appeal.
WE CONCUR: BEDSWORTH, ACTING P. J., ARONSON, J.