Judge: Craig Griffin, Case: Abdul-Wahab v. Khalayli, Date: 2022-09-12 Tentative Ruling

Defendant, Sara Khalayli’s (“Defendant”) Special Motion to Strike the Complaint of Plaintiffs, Walid Abdul-Wahab (“Abdul-Wahab”) and Desert Farms, Inc. (“Desert Farms”) (collectively, “Plaintiffs”) pursuant to Code Civ. Proc., §425.16 is DENIED.

As an initial matter, the Court finds that the motion is directed to each allegation of protected activity individually and, thus, the Court finds an individual analysis of each allegation is appropriate. (See Balla v. Hall (2021) 59 Cal.App.5th 652, 672; Baral v. Schnitt (2016) 1 Cal.5th 376.)

Prong 1: A moving defendant's burden on an anti-SLAPP motion is to demonstrate that the acts of which plaintiff complains were in furtherance of defendant's right of petition or free speech under the U.S. or CA Constitution in connection with a public issue as defined in the statute. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67; C.C.P. §425.16(b)(1).) A defendant meets that burden by demonstrating that the act underlying the plaintiff's cause is protected activity – that is, that it fits one of the four categories in §425.16(e). (Navellier v. Sletten (2002) 29 Cal.4th 82, 88; Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1043).

Courts “should engage in a relatively careful analysis of whether a particular statement” is protected as being in connection with an issue of public interest. The context of the statement—including whether it is commercial speech, the speaker, audience, and purpose—is relevant. (FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 145.)

A two-part test is used. First, the court must decide what “issue of public interest the speech in question implicates—a question we answer by looking to the content of the speech.” Second, the court examines the “functional relationship … between the speech and the public conversation about some matter of public interest.” (FilmOn.com Inc. v. DoubleVerify Inc., supra, 7 Cal.5th at 149-150, (internal quotes omitted).)

This second part of the test includes determining if the speaker “participated in, or furthered, the discourse that makes an issue one of public interest.” (FilmOn.com Inc. v. DoubleVerify Inc., supra, 7 Cal.5th at 151, 153; Murray v. Tran (2020) 55 Cal.App.5th 10, 34.)

“Public interest” within the meaning of the anti-SLAPP statute includes “not only governmental matters, but also private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a governmental entity.” (Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479; see Brodeur v. Atlas Entertainment, Inc. (2016) 248 Cal.App.4th 665, 675.)

Here, Defendant summarily argues that disseminating statements to consumers regarding the manner in which Plaintiffs operate their camel milk business as well as statements which pertain to her marriage and divorce with Abdul-Wahab constitute protected speech.  (Mtn. at 7:28-8:6.)

Statements re Marriage and Divorce: Defendant offers no explanation for why statements regarding her marriage and divorce from Abdul-Wahab are statements made in connection with a public issue. There is no evidence presented that Defendant’s marriage and divorce impacts a broad segment of society and/or that it affects a community in a manner similar to that of a governmental entity such that it could constitute an issue of public interest. While it is true that issues of child support, child custody and domestic battery may be issues of public interest, an abstract public interest in the general subject matter is insufficient. (World Fin'l Group, Inc. v. HBW Ins. & Fin'l Services, Inc. (2009) 172 Cal.App.4th 1561, 1570—"The fact that ‘a broad and amorphous public interest’ can be connected to a specific dispute is not sufficient to meet the statutory requirements” of § 425.16.)

Further, even if the Court were to assume the public interest implicated is child support, child custody and domestic battery issues, Defendant failed to show how by sending the statement to Stella Rockn, she “participated in, or furthered, the discourse” regarding those issues.  (FilmOn.com Inc. v. DoubleVerify Inc., supra, 7 Cal.5th at 151, 153.)  The statement to Stella Rockn was sent to one individual, whose interest in the public issue is not established, via a private instant message with no evidence that the statement was ever designed to enter the public sphere. (See Id.) Likewise, Defendant failed to show how statements regarding child support, child custody and domestic battery issues published in an online forum focused on camel milk products in any way furthered the discourse on said issues.

Defendant also failed to provide any specific legal authority to support her contention that these statements are protected activity within the meaning of C.C.P. § 425.16(e). Thus, Defendant has not shown that the statements related to her marriage and divorce are protected speech under C.C.P. § 425.16(e).

Therefore, the Court finds that Defendant has failed to meet her burden on Prong 1 as to the statements related to Defendant’s marriage and divorce. (See Compl. ¶¶ 12(c), 19(a), 19(b), 19(c), 19(g), and 19(h).)

Statements re Plaintiffs’ Business: Defendant’s argument that the statements pertaining to Plaintiffs’ camel milk business were made in connection with an issue of public interest has merit with respect to the first cause of action. (See Compl. ¶ 12(a), 12(b).) These statements are consumer information and were posted on a public discussion forum on Facebook for consumers of camel milk. “Consumer information … [that] affect[s] a large number of persons … generally is viewed as information concerning a matter of public interest.” (See Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 898-899.)

Accordingly, the Court finds that Defendant met her burden on Prong 1 of demonstrating that the statements pertaining to Plaintiffs’ business that are at issue in the First Cause of Action are protected activity.

With respect to the Second Cause of Action, Defendant failed to show how the statements pertaining to Plaintiffs’ business sent to Stella Rockn are statements made in furtherance of Defendant’s free speech rights in connection with a public issue or an issue of public interest.  (C.C.P. § 425.16(e)(4).) Defendant offers no evidence to establish that by making the statements to Stella Rockn Defendant furthered the public discourse on the consumer issue. (See FilmOn.com Inc. v. DoubleVerify Inc., supra, 7 Cal.5th at 151, 153; Murray v. Tran (2020) 55 Cal.App.5th 10, 34.) These statements were made to a private individual by private instant message with no evidence that they were designed to enter the public sphere. Further, it is not alleged that Stella Rockn has any interest in the consumer issue implicated.

Thus, Defendant has failed to meet her burden of showing that any of the statements giving rise to the Second Cause of Action are protected speech. Accordingly, the Court DENIES the motion on Prong 1 as to the Second Cause of Action.

With regard to the First Cause of Action, the Court DENIES the motion on Prong 1 as to the statements related to Defendant’s marriage and divorce, but will proceed to the Prong 2 analysis for the statements related to Plaintiffs’ business.

Prong 2: If the court finds Prong 1 has been met, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. The opposing party has the burden on Prong 2. (Equilon, supra, 29 Cal.4th 53, 67; C.C.P. § 425.16(b)(1).)

To establish a probability of prevailing under C.C.P. § 425.16(b)(1), the plaintiff must state and substantiate a legally sufficient claim, to demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.)

The court considers the pleadings and supporting and opposing affidavits stating facts upon which the liability or defense is based. (Equilon, 29 Cal.4th at 67; C.C.P. § 425.16(b)(2).) The plaintiff must show that there is admissible evidence which, if credited, would be sufficient to sustain a favorable judgment. (McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 108.)

Here, Plaintiffs assert a claim for libel per se against Defendant in their first cause of action.

Libel is 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.  (Cal. Civ. Code § 45.)

“Libel per se is distinguished from libel per quod in Civil Code section 45a (Citation): ‘A libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact, is said to be a libel on its face. Defamatory language not libelous on its face is not actionable unless the plaintiff alleges and proves that he has suffered special damage as a proximate result thereof…’” (Barnes-Hind, Inc. v. Superior Court (1986) 181 Cal.App.3d 377, 382.)

Plaintiffs are correct that the statements at issue (see Compl. ¶ 12(a), 12(b)) clearly convey that Plaintiffs keep their product in unsafe and unsanitary conditions prior to sale. Thus, Plaintiffs’ argument that these statements “obviously would make it harder for Plaintiffs to sell their product, and thus injures Plaintiffs in their profession” has merit. Accordingly, such statements would be libelous per se. Defendant does not dispute that these statements could reasonably be understood to be assertions of fact or that they would be injurious to Plaintiffs.  Rather, Defendant asserts Plaintiffs’ libel claim fails because she has demonstrated that the defense of truth and the common interest privilege apply. For the reasons discussed below, the Court finds that Defendant’s evidence fails to defeat Plaintiffs’ claims as a matter of law. 

Truth as a defense: “Truth, of course, is an absolute defense to any libel action.” (Campanelli v. Regents of Univ. of Cal. (1996) 44 Cal.App.4th 572, 581-582.) Defendant’s evidence does not establish the truth of the at issue statements. Defendant’s declaration at paragraph 21 points to two online reviews in support of her contention that the statement that customers complained their packages had no seals is true. However, neither of the online reviews are complaints that the consumer’s packages had no seals. (See Ex. S and T to Defendant’s Evidence.)

As to the statements that the camel milk powder sits in a hot garage for months and is packed in the garage, Defendant’s observations as described in her declaration do not establish that the camel milk powder sits in a hot garage for months or that it is packed in the garage. (See Khalayli Declaration, ¶ 25.) The observations only establish that Defendant, on certain occasions, saw a single sack of powdered camel’s milk in Abdul-Wahab’s garage. Defendant does not attest that she saw the same sack every time or that she saw Abdul-Wahab packing milk in his garage or that she otherwise has any firsthand knowledge of how Plaintiffs’ camel milk powder is stored and packaged. She also never states that Abdul-Wahab was using the milk from the garage to fulfill orders.

In paragraph 26 of her declaration, Defendant points to several additional online reviews of Plaintiffs’ product, but nowhere in these reviews does any customer complain that his or her package had no seal. (See Exhibits X-Z to Defendant’s Evidence.) These reviews likewise do not establish that Plaintiffs store their milk powder in a hot garage for months or that the powder is packed in Plaintiff’s garage.  In addition, the online review contained in Exhibit CC to Defendant’s supplemental declaration only states that the customer received several bottles of the milk with broken caps. The review does not state that the packages had no seals. (See ROA 19.)

Moreover, in Plaintiffs’ opposition, Abdul-Wahab attests that the statements at issue are false. (Abdul-Wahab Decl., ¶¶ 5-7.) In ruling on an anti-SLAPP motion, the court “accepts the plaintiff's evidence as true, and evaluates the defendant's showing only to determine if it defeats the plaintiff's claim as a matter of law.” (Baral, supra, 1 Cal.5th at 385.)  The court does not resolve evidentiary conflicts. (Id. at 386.) Accordingly, the Court finds the pleadings and evidence in the record insufficient to establish that the defense of truth applies to Plaintiffs’ claims.

Common Interest Privilege: The common interest privilege “extends a conditional privilege against defamatory statements made without malice on subjects of mutual interest. If malice is shown, the privilege is not merely overcome, it never arises. However, if the privilege does arise, it is a complete defense.”  (Hailstone v. Martinez (2008) 169 Cal.App.4th 728, 739-740) (Internal citations omitted.)

Here, while it is true that potential consumers of Plaintiffs’ product clearly had an interest in the information which Defendant disseminated (i.e., information related to how the product is stored, packaged, and sealed), Defendant failed to show a mutual interest between these potential consumers and Defendant. While she may have a general interest in Plaintiffs’ business dealings as she argues in her Reply brief, the Court finds this to be insufficient to demonstrate a mutual interest in the specific concern related to Plaintiffs’ product handling. “The word 'interested' as used in the statute refers to a more direct and immediate concern. That concern is something other than mere general or idle curiosity[.]” (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 914.)

Defendant also offers no evidence to show that she shares a close relationship with these potential consumers such that a mutual interest can be inferred. (See Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 727; see also Kashian, supra, 98 Cal.App.4th at 914.)

Accordingly, the Court finds Defendant has failed to show that the common interest privilege applies.

Thus, Plaintiffs have met their burden of demonstrating a probability of prevailing on their first cause of action for libel per se. Accordingly, the motion is DENIED as to the first cause of action.

Third Cause of Action: Plaintiffs’ third cause of action prays for injunctive relief pursuant to Balboa Island Village Inn, Inc. v. Lemen (2007) 40 Cal.4th 1141, prohibiting Defendants from repeating statements judicially determined to be defamatory. A claim for injunctive relief is not a cause of action but instead a request for a remedy and as such, it is not subject to the anti-SLAPP statute.  (Golden Gate Land Holdings LLC v. Direct Action Everywhere (2022) 81 Cal.App.5th 82, 91; Wong v. Jing (2010) 189 Cal.App.4th 1354, 1360 fn 2.) In any event, because Plaintiffs have shown a probability that they will prevail on their first cause of action for libel, they have necessarily shown a probability of prevailing on the third cause of action as injunctive relief may issue to enjoin the statements determined to be defamatory. Thus, the motion fails as to the third cause of action as well.

Accordingly, the Motion is DENIED.

Defendant’s request for judicial notice (ROA 9) is GRANTED as to the existence of and legal effects of the records, but not as to the truth of any disputed facts asserted therein. (Fontenot v. Wells Fargo Bank, NA (2011) 198 Cal.App.4th 256, 264; see Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.)

Plaintiffs’ evidentiary objection numbers 1-5, 31-34, and 38-39 are OVERRULED. Objection numbers 7, 19-30, and 40 are SUSTAINED as to relevancy and number 37 is SUSTAINED as to foundation. The Court declines to rule on objection numbers 6, 8-18, and 35-36, as they are not necessary to the resolution of the motion.

Defendant’s evidentiary objection numbers 2-12, and 19 are OVERRULED. Objection numbers 1 and 21 are SUSTAINED as to relevancy. The Court declines to rule on objection numbers 13-18, 20, and 22-30, as they are not necessary to the resolution of the motion.

Counsel for Plaintiffs to give notice.