Judge Lisa K. Sepe-Wiesenfeld, Case Number: 22SMCV01866, Date: 2024-01-09 Tentative Ruling

Judge: Lisa K. Sepe-Wiesenfeld, Case: 22SMCV01866, Date: 2024-01-09 Tentative Ruling

Defendant Mark Anthony Davis (“Defendant”) moves to strike Plaintiff Jamie Koz (“Plaintiff”)’s complaint on the ground that Plaintiff has alleged liability based on protected speech, i.e., statements made in a public forum in connection with an issue of public interest, and Plaintiff cannot demonstrate a likelihood of success on his claims.

In the complaint, Plaintiff alleges he is a former DJ operating under the name “White Lightning,” Defendant is a club promotor, and together Plaintiff and Defendant were business partners who worked together for 17 years promoting and producing events at club venues in Los Angeles, where Plaintiff would perform as the featured DJ. (Compl. ¶¶ 2-4, 7.) Plaintiff alleges that the relationship deteriorated, and the parties agreed to split the club nights and operate separately. (Compl. ¶ 9.) The parties engaged in litigation after Defendant allegedly began to operate in direct competition to Plaintiff, and a settlement provided that neither party would disparage the other. (Compl. ¶¶ 10-16.) However, Defendant went on a YouTube talk show called “DaMusic Link” with LadyBea and stated unfavorable things about Plaintiff. (Compl. ¶¶ 17-18.) Plaintiff asserts a single cause of action for breach of contract.

The California legislature has authorized a special motion to strike that may be filed in lawsuits that seek to “chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” (Code Civ. Proc., § 425.16, subd. (a).) Code of Civil Procedure 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 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.

Accordingly, section 425.16 posits a two-step process for determining whether an action is a strategic lawsuit against public participation (SLAPP). First, the Court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. (See Code Civ. Proc., § 425.16, subd. (b)(1).) “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).” (Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1043.) Those categories include “(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.” (Code Civ. Proc., § 425.16, subd. (e).) If defendant makes a threshold showing that the challenged cause of action is one arising from protected activity, the burden shifts to the plaintiff to establish a likelihood of prevailing on the complaint. (See Code Civ. Proc., § 425.16, subd. (b)(1).)

To invoke Code of Civil Procedure section 425.16, a defendant need only demonstrate that a suit arises from the defendant’s exercise of free speech or petition rights. (See Code Civ. Proc., § 425.16, subd. (b); City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78 (City of Cotati).) This is determined by “the gravamen or principal thrust of the action.” (See In re Episcopal Church Cases (2009) 45 Cal.4th 467, 477.) “In the anti-SLAPP context, the 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.” (City of Cotati, supra, 29 Cal.4th at p. 78.) “In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Code Civ. Proc., § 425.16, subd. (b)(2).)

Defendant argues that these statements were made on an Internet website, which constitutes a public forum, and the statements were made in connection with an issue of public interest. Plaintiff does not dispute that YouTube is a public forum, and it is axiomatic that websites “accessible to the public are public forums for purposes of the anti-SLAPP statute.” (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1366, ellipses omitted.) Defendant also argues the statements were made in connection with an issue of public interest because he made statements about Plaintiff’s character and business practices, which were meant to be warnings for consumers. (Mot., p. 3, ll. 23-24.)

Woodhill Ventures, LLC v. Yang (2021) 68 Cal.App.5th is instructive here. In that action, a customer who was dissatisfied with a bakery’s creation of a cake and response to his complaints stated his grievances with the bakery on his podcast and to his 1.5 million followers on social media, and he argued that his statements were protected speech within the purview of the anti-SLAPP statute, but the trial court and appellate court disagreed. (Id. at pp. 627, 630.) The appellate court stated that even if a party enjoys his own celebrity status, this does not make everything he says of public interest, and an “attempt to exact a personal revenge” does not constitute a protected public interest statement. (Id. at pp. 633, 635.) Here, the statements made by Defendant do not read as constituting warnings to future consumers. Rather, Defendant simply aired his grievances with Plaintiff, stating that Plaintiff did not want to DJ anymore, he lost his passion, he did not want to pay people, and he just wanted to make money. It is clear from that statements that the statements arose from a private dispute between Plaintiff and Defendant; it was not an attempt by Defendant to warn consumers. Thus, the Court lacks a basis to conclude that Plaintiff’s claims arise from protected activity, and Defendant has failed to satisfy the first prong of the anti-SLAPP statute, and the burden does not shift to Plaintiff to show that he is likely to prevail on his claims. Accordingly, Defendant Mark Anthony Davis’ Special Motion to Strike Pursuant to Code of Civil Procedure section 425.16 is DENIED.

Plaintiff requests an award of attorney fees and costs pursuant to Code of Civil Procedure section 425.16, subdivision (c), which provides that “[i]f the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion.” The Court does not find the subject motion to be frivolous or solely intended to cause unnecessary delay. It is clear that Plaintiff’s claims arise from statements made by Defendant, and the Court could have concluded that Defendant’s statements were meant to warn those who may wish to be involved with Plaintiff in a business context. The Court simply did not so conclude. Insofar as Plaintiff argues that Defendant waived his right to bring this motion by agreeing not to say unfavorable things as part of a settlement dispute, the Court does not agree, as there is a question of fact about the meaning of that provision of the agreement. Thus, the Court finds there is no basis to award fees here, and Plaintiff’s request for attorney fees and costs is DENIED.