Judge: Cynthia A Freeland, Case: 37-2023-00001817-CU-CO-NC, Date: 2023-10-06 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

SOUTH BUILDING TENTATIVE RULINGS - October 05, 2023

10/06/2023  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited  Contract - Other Demurrer / Motion to Strike 37-2023-00001817-CU-CO-NC CRAMER VS GARST [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Strike, 09/11/2023

Plaintiff/Cross-Defendant Winthrop Cramer ('Cross-Defendant')'s special motion to strike Defendant/Cross-Complainant Shane Garst ('Cross-Complainant')'s First Amended Cross-Complaint (the 'FACC') is denied.

Cross-Defendant's evidentiary objections are sustained, with the exception of Objection Nos. 5, 7, and 11, which are overruled.

California Code of Civil Procedure ('CCP') § 425.16(b)(1) provides that '[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.' Cal. Code Civ. P. § 425.16(b)(1). 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) or 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.

Cal. Code Civ. P. §§ 425.16(e)(1)-(4).

A special motion to strike thus involves a two-step process. First, Cross-Defendant must establish that the challenged cause(s) of action is one arising from protected activity as defined in CCP § 425.16(e).

See Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 67. Second, if Cross-Defendant makes the required showing, the burden shifts to Cross-Complainant to demonstrate a probability of prevailing on the challenged cause(s) of action. Ibid. Only a cause of action that satisfies both prongs of the anti-SLAPP statute is subject to being stricken. See Rohde v. Wolf (2007) 154 Cal. App. 4th 28, 35.

Calendar No.: Event ID:  TENTATIVE RULINGS

3006094 CASE NUMBER: CASE TITLE:  CRAMER VS GARST [IMAGED]  37-2023-00001817-CU-CO-NC In making the foregoing determinations, the court considers the pleadings and supporting and opposing affidavits establishing the facts upon which the liability or defense is based. See Cal. Code Civ. P. § 425.16(b)(2).

The court addresses each prong of the anti-SLAPP analysis in turn.

First Prong: Cross-Defendant Fails to Meet His Initial Burden of Demonstrating that the Challenged Causes of Action Arise from Protected Activity The fundamental consideration under the first prong of the anti-SLAPP statute 'is whether the cause of action is based on the defendant's protected free speech or petitioning activity.' Navellier v. Sletten (2002) 29 Cal. 4th 82, 89 (emphasis in original). There is a 'distinction between activities that form the basis for a claim and those that merely lead to the liability-creating activity or provide evidentiary support for the claim.' Laker v. Board of Trustees of California State University (2019) 32 Cal. App. 5th 745, 767.

Put differently, to be subject to an anti-SLAPP motion, Cross-Defendant's protected activity must supply elements of the challenged cause of action. The court may strike a cause of action only if the protected activity itself is the wrong complained of and not merely evidence of liability or a step leading to other acts for which liability is asserted. See Crossroads Investors, L.P. v. Federal National Mortgage Assn. (2017) 13 Cal. App. 5th 757, 776. The focus is not on the cause of action's form; rather, it is Cross-Defendant's activity giving rise to their alleged liability and whether that conduct is protected activity. See Birkner v. Lam (2007) 156 Cal. App. 4th 275, 281.

The court finds that Cross-Defendant has failed to demonstrate that the challenged causes of action arise from his protected activity. Cross-Defendant moves to strike the following causes of action from the FACC: (1) the fifth cause of action (defamation); (2) the sixth cause of action (misappropriation of likeness); (3) the seventh cause of action (intentional interference with prospective economic advantage); and (4) the eighth cause of action (negligent interference with prospective economic advantage). The FACC alleges that on January 11, 2021, Cross-Complainant purchased the real property located at 3357 Adams Street, Carlsbad, CA 92008 (the 'Property') for the purpose of remodeling and eventually selling it. See FACC, ¶¶ 15-16. On February 11, 2022, Cross-Complainant and Cross-Defendant entered into a written purchase agreement for the purchase and sale of the Property. Ibid., ¶ 17. A material term of the purchase agreement provided that Cross-Defendant would release $200,000.00 from escrow to Cross-Complainant upon the completion of certain items. Ibid., ¶ 20. Cross-Defendant has breached the purchase agreement by refusing to release the $200,000.00 despite Cross-Complainant ensuring satisfactory completion and construction of the agreed upon items.

Ibid., ¶ 23. Moreover, during construction, Cross-Defendant requested certain upgrades to the Property with the promise of compensating Cross-Complainant for that work. To date, Cross-Defendant has not paid for those services. Ibid., ¶ 21. After escrow closed on August 8, 2022, Cross-Defendant informed Cross-Complainant of certain latent defects present in the Property. Ibid., ¶¶ 24-25. While Cross-Complainant attempted to remedy the defects, Cross-Defendant eventually prohibited Cross-Complainant from accessing the Property. Ibid., ¶ 26.

In October 2022, Cross-Defendant allegedly caused a website to be hosted and published titled 'www.shanegarst.com' (the 'Website'). The Website identifies Cross-Complainant and his wife by name and photograph and proceeds to accuse the Garsts of abandoning the subject project, using subpar construction materials for the project, and changing construction designs for the project without Cross-Defendant's consent. Ibid., ¶ 27. Cross-Defendant has since caused an additional website to be hosted and published titled 'www.jaymegarst.com,' which automatically redirects any web user searching for Mrs. Garst to the Website. Ibid., ¶ 28. In addition, the FACC alleges that Cross-Defendant has registered an account on LinkedIn.com impersonating Cross-Complainant in an attempt to further tarnish and defame Cross-Complainant's personhood and reputation. Ibid., ¶ 29. The Website has damaged Cross-Complainant in that he has lost at least two of his investors (Mimi Askew and Kevin Spear) who discovered the Website and promptly terminated the parties' business relationship. Ibid., ¶¶ 30, 78. The foregoing allegations form the basis for Cross-Complainant's fifth, sixth, seventh, and eighth causes of action.

Calendar No.: Event ID:  TENTATIVE RULINGS

3006094 CASE NUMBER: CASE TITLE:  CRAMER VS GARST [IMAGED]  37-2023-00001817-CU-CO-NC Cross-Defendant contends that the comments on the Website constitute a writing made in a place open to the public or a public forum in connection with an issue of public interest and thus constitutes protected activity under CCP § 425.16(e)(3) and/or (e)(4). The court respectfully disagrees. To start, Cross-Defendant is correct that '[w]eb sites accessible to the public . . . are 'public forums' for purposes of the anti-SLAPP statute.' Jackson v. Mayweather (2017) 10 Cal. App. 5th 1240, 1252 (quoting Barrett v. Rosenthal (2006) 40 Cal. 4th 33, 41). As to the statute's second requirement, viz., that the written or oral statements or other conduct be 'in connection with a public issue' or 'an issue of public interest,' the First District Court of Appeal has explained: The most commonly articulated definitions of 'statements made in connection with a public issue' focus on whether (1) the subject of the statement or activity precipitating the claim was a person or entity in the public eye; (2) the statement or activity precipitating the claim involved conduct that could affect large numbers of people beyond the direct participants; and (3) whether the statement or activity precipitating the claim involved a topic of widespread public interest. As to the latter, it is not enough that the statement refer to a subject of widespread public interest; the statement must in some manner itself contribute to the public debate.

Wilbanks v. Wolk (2004) 121 Cal. App. 4th 883, 898 (internal citations omitted).

Courts give the phrase 'issue of public interest' an 'exceedingly expansive interpretation' given CCP § 425.16(a)'s mandate that the court construe the law broadly to encourage continued participation in matters of public significance. See Summit Bank v. Rogers (2012) 206 Cal. App. 4th 669, 695; Gilbert v. Sykes (2007) 147 Cal. App. 4th 13, 23. Courts have interpreted 'public interest' 'to include 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. [Citations.]' Cross v. Cooper (2011) 197 Cal. App. 4th 357, 372 (quoting Damon v. Ocean Hills Journalism Club (2000) 85 Cal. App. 4th 468, 479). 'Although matters of public interest include legislative and governmental activities, they may also include activities that involve private persons and entities, especially when a large, powerful organization may impact the lives of many individuals.' Cross, 197 Cal. App. 4th at 372 (quoting Church of Scientology v. Wollersheim (1996) 42 Cal. App. 4th 628, 650). The Third District Court of Appeal has enumerated additional guidance regarding what constitutes a public interest: First, 'public interest' does not equate with mere curiosity. Second, a matter of public interest should be something of concern to a substantial number of people. Thus, a matter of concern to the speaker and a relatively small, specific audience is not a matter of public interest. Third, there should be some degree of closeness between the challenged statements and the asserted public interest; the assertion of a broad and amorphous public interest is not sufficient. Fourth, the focus of the speaker's conduct should be the public interest rather than a mere effort 'to gather ammunition for another round of [private] controversy....' Finally, 'those charged with defamation cannot, by their own conduct, create their own defense by making the claimant a public figure.' A person cannot turn otherwise private information into a matter of public interest simply by communicating it to a larger number of people.

Weinberg v. Feisel (2003) 110 Cal. App. 4th 1122, 1132-1133 (internal citations omitted).

Additionally, 'in order to satisfy the public issue/issue of public interest requirement of section 425.16, subdivision (e)(3) and (4) of the anti-SLAPP statute, in cases where the issue is not of interest to the public at large, but rather to a limited, but definable portion of the public (a private group, organization, or community), the constitutionally protected activity must, at a minimum, occur in the context of an ongoing controversy, dispute or discussion, such that it warrants protection by a statute that embodies the public policy of encouraging participation in matters of public significance.' Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal. App. 4th 107, 119.

Attached as Exhibit E to the motion is a screen shot of the Website. The homepage of the Website states, 'Jayme and Shane Garst – The Sydekicks' and, directly below that, states 'Attention Calendar No.: Event ID:  TENTATIVE RULINGS

3006094 CASE NUMBER: CASE TITLE:  CRAMER VS GARST [IMAGED]  37-2023-00001817-CU-CO-NC Homebuyers: Don't Make the Same Mistake We Did.' The Website then goes on to describe, in essence, the pertinent allegations set forth in Cross-Defendant's operative pleading in this action. More specifically, the Website explains how the Garsts allegedly promised Cross-Defendant a dream home yet ultimately cut corners, used subpar materials, and changed designs without Cross-Defendant's consent. As a result, the Property leaks every time it rains which causes severe water damage through the home. Cross-Defendant and his family have been forced to vacate the home after only four months, and both architects and engineers have opined that repairs will take between six months and one year to complete. The Website goes on to state that the Garsts abandoned the project before it was finished and recorded a $500,000.00 lien against the Property despite not being a general contractor. The Website concludes by stating: Don't let the promise of a beautiful home cloud your judgement. Do your research and make sure you're working with a reputable builder who uses quality materials and has a proven track record of finishing projects. Otherwise, you could end up with a leaky, unfinished and unsafe home, just like us. We hope our story serves as a cautionary tale for those in the market for a new home. Stay safe and choose wisely.

See Motion, Ex. E. The court finds that Cross-Defendant has failed to demonstrate that his comments on the Website constitute statements made in connection with an issue of public interest. While the court must construe CCP §§ 425.16(e)(3) and (e)(4) broadly, this mandate is not unlimited. For example, the Fourth District Court of Appeal has noted that 'the Legislature did not intend to apply the statute to purely private transactions.' Garretson v. Post (2007) 156 Cal. App. 4th 1508, 1524. The Second District Court of Appeal likewise has explained: ' '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 the anti-SLAPP statute. [Citation.] By focusing on society's general interest in the subject matter of the dispute instead of the specific speech or conduct upon which the complaint is based, defendants resort to the oft-rejected, so-called 'synecdoche theory of public issue in the anti-SLAPP statute,' where '[t]he part [is considered] synonymous with the greater whole.' ' (World Financial, supra, 172 Cal.App.4th at p. 1570, 92 Cal.Rptr.3d 227.) Workman v. Colichman (2019) 33 Cal. App. 5th 1039, 1048. See also Commonwealth Energy Corp. v. Investor Data Exchange, Inc. (2003) 110 Cal. App. 4th 26, 34 (to be considered an issue of public interest, the communication must 'go beyond the parochial particulars of the given parties.').

In this case, the court finds that the factors establishing the existence of a statement made in connection with a public issue are lacking. Cross-Defendant contends that he was providing the public with 'consumer protection information' concerning the perils of homebuying without first researching the builder to determine if he uses quality building materials and has a proven track record of finishing projects. This argument vastly overstates the issues in this case. This action concerns a private dispute between Cross-Defendant and Cross-Complainant concerning their respective alleged breaches of the subject purchase agreement, i.e., Cross-Defendant's failure to pay for services and Cross-Complainant's failure to construct the residence free from defects. This is not a controversy affecting a large number of people or the subject of widespread public interest. Moreover, while a homebuilder's business practices are, potentially, of interest to members of the public seeking to purchase real property in the San Diego community, there is no evidence that the Garsts or their business constitute a large, powerful organization impacting the lives of numerous people. In addition, Cross-Defendant is attempting to do exactly what the above authorities prohibit – connecting a 'broad and amorphous public interest' (a caution to potential homebuyers to research homebuilders before purchasing a property) with a specific dispute (the private contract dispute between Cross-Complainant and Cross-Defendant). In sum, Cross-Defendant fails to demonstrate a sufficient nexus between the comments on the Website and the alleged public interest at issue.

Accordingly, the court finds that Cross-Defendant has not satisfied his initial burden of demonstrating that the challenged causes of action arise from protected activity.

Calendar No.: Event ID:  TENTATIVE RULINGS

3006094 CASE NUMBER: CASE TITLE:  CRAMER VS GARST [IMAGED]  37-2023-00001817-CU-CO-NC Second Prong: Cross-Complainant's Probability of Prevailing on the Challenged Cause(s) of Action Since Cross-Defendant did not meet his initial burden under the anti-SLAPP statute, the burden does not shift to Cross-Complainant to demonstrate a likelihood of prevailing on the challenged causes of action. See Robles v. Chalipoyil (2010) 181 Cal. App. 4th 566, 582; Chodos v. Cole (2012) 210 Cal. App. 4th 692, 706.

In light of the foregoing, the court denies Cross-Defendant's special motion to strike the FACC.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, October 6, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of October 6, 2023. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

Calendar No.: Event ID:  TENTATIVE RULINGS

3006094