Judge Michael P. Linfield, Case Number: 24STCV01638, Date: 2024-03-28 Tentative Ruling

Judge: Michael P. Linfield, Case: 24STCV01638, Date: 2024-03-28 Tentative Ruling

Resp. Party: Plaintiffs Melissa Bacelar, Wagmor Pets, and Wylder’s Holistic Pet Center, Inc.

Defendant Faith Ballin’s Anti-SLAPP Motion is GRANTED. Defendant Faith Ballin is dismissed with prejudice from the Verified Complaint.

Defendant Faith Ballin filed this anti-SLAPP motion, asking that the entire complaint be stricken. (See Motion, p. 2:6.) As indicated below, Defendant Ballin prevails on her anti-SLAPP motion, and hence must be stricken as a defendant. However, there are other Defendants in this lawsuit, and they have not joined in this anti-SLAPP motion. Therefore, the Court will not strike the entire complaint as to all Defendants.

On January 22, 2024, Plaintiffs Melissa Bacelar, Wagmor Pets, and Wylder’s Holistic Pet Center, Inc. filed their Verified Complaint against Defendants Kim Sill, Shelter Hope Pet Shop, Inc., Matt Friedman, and Faith Ballin on a single cause of action for defamation.

On February 27, 2024, Plaintiffs amended their Complaint to substitute Doe 1 with Shelter Hope Enterprises, Inc.

On February 28, 2024, Defendant Faith Ballin (“Defendant”) filed her Special Motion to Strike Complaint (“Anti-SLAPP Motion”). In support of her Anti-SLAPP Motion, Defendant concurrently filed: (1) Declaration of Kyla Dayton; (2) Declaration of Faith Ballin; and (3) Proposed Order.

On February 28, 2024, Defendant filed Motion for Undertaking. In support of her Motion for Undertaking, Defendant concurrently filed: (1) Declaration of Faith Ballin; and (2) Proposed Order.

On March 15, 2024, Plaintiffs filed their Opposition to Special Motion to Strike Complaint (“Opposition”). The Opposition includes a Request for Sanctions.

On March 21, 2024, Defendant filed Reply in Support of Special Motion to Strike (“Reply”). Defendant concurrently filed: (1) Evidentiary Objections; and (2) Order on Evidentiary Objections.

On March 21, 2024, Defendant filed her Notice of Non-Opposition regarding the Motion for Undertaking.

Plaintiffs have not filed an opposition or other response to the Motion for Undertaking.

Defendant filed evidentiary objections to Plaintiffs’ evidence. The following are the Court’s rulings on these objections.

Objection
1	SUSTAINED
2	SUSTAINED

“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.” (Code Civ. Proc., § 425.16, subd. (b)(1).)

“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).)

“A SLAPP suit—a strategic lawsuit against public participation—seeks to chill or punish a party's exercise of constitutional rights to free speech and to petition the government for redress of grievances. The Legislature enacted Code of Civil Procedure section 425.16—known as the anti-SLAPP statute—to provide a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055–56, citations omitted.)

“In light of the foregoing, we may summarize a court's task in ruling on an anti-SLAPP motion to strike as follows. Section 425.16, subdivision (b)(1) requires the court to engage in 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. Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’” (Equilon Enters. v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)

“Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88–89, emphases in original.)

Defendant moves the Court to strike and dismiss Plaintiffs’ Verified Complaint in its entirety. (Anti-SLAPP Motion, p. 16:13–14.)

Defendant argues: (1) that the alleged statements satisfy prong one as they were made in a place open to the public in connection with an issue of public interest; (2) that the Court should find that Plaintiffs cannot meet their burden of proving a probability of prevailing; and (3) that Plaintiffs cannot meet their prong two evidentiary burden because Defendant is not responsible for the misconduct alleged. (Anti-SLAPP Motion, pp. 8:4–6, 10:17–20, 15:17–19.)

Plaintiffs disagree, arguing: (1) that the Anti-SLAPP Motion does not address the actual allegations of the Verified Complaint; (2) that the allegations of the Verified Complaint are true; and (3) that the Anti-SLAPP Motion does not succeed on both steps of the analysis. (Opposition, pp. 4:4–5, 6:1, 6:15.)

In her Reply, Defendant argues: (1) that on prong one, the online statements and statements that were caused to be made online are protected activities; (2) that on prong one, the private conversation is protected activity subject to the statute’s catch-all provision; and (3) that on prong two, Plaintiffs do not demonstrate a probability that Defendant is liable for defamation. (Reply, pp. 3:5–7, 5:17–18, 7:12–13.)

“The defendant's first-step burden is to identify the activity each challenged claim rests on and demonstrate that that activity is protected by the anti-SLAPP statute. A claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted. To determine whether a claim arises from protected activity, courts must consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability. Courts then must evaluate whether the defendant has shown any of these actions fall within one or more of the four categories of acts protected by the anti-SLAPP statute.” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884 [cleaned up], emphasis in original.)

“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.” (Code Civ. Proc., § 425.16, subd. (e).)

“An act is in furtherance of the right of free speech if the act helps to advance that right or assists in the exercise of that right.” (Tamkin v. CBS Broad., Inc. (2011) 193 Cal.App.4th 133, 143, citation omitted.)

There is “a two-step inquiry for deciding whether the activity from which a lawsuit arises falls within section 425.16(e)(4)'s protection: first, we ask what public issue or issues the challenged activity implicates, and second, we ask whether the challenged activity contributes to public discussion of any such issue. If the answer to the second question is yes, then the protections of the anti-SLAPP statute are triggered, and the plaintiff in the underlying lawsuit must establish ‘a probability’ of prevailing before the action may proceed.” (Geiser v. Kuhns (2022) 13 Cal.5th 1238, 1243, citing FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 149–150; Code Civ. Proc., § 425.16, subd. (b).)

“At this stage, the question is only whether a defendant has made out a prima facie case that activity underlying a plaintiff's claims is statutorily protected, not whether it has shown its acts are ultimately lawful. . . . Consistent with this understanding, at the first step of the anti-SLAPP analysis, we routinely have examined the conduct of defendants without relying on whatever improper motive the plaintiff alleged.” (Wilson, supra, 7 Cal.5th at p. 888, citations omitted.)

· engaging in a campaign to defame Plaintiffs by employing websites located at:

o that Defendants had researched the matter and traced all the IP addresses to Plaintiffs;

· coaching the 13-year-old to make posts on Instagram and other places, in part by repeating these same lies; and

· having the 13-year-old make posts on Instagram and other places that accused Plaintiffs of stalking him, making death threats, and engaging in other illegal activities.

“Analysis of an anti-SLAPP motion is not confined to evaluating whether an entire cause of action, as pleaded by the plaintiff, arises from protected activity or has merit. Instead, courts should analyze each claim for relief — each act or set of acts supplying a basis for relief, of which there may be several in a single pleaded cause of action — determine whether the acts are protected and, if so, whether the claim they give rise to has the requisite degree of merit to survive the motion.” (Bonni v. St. Joseph Health Sys. (2021) 11 Cal.5th 995, 1010, citation omitted.)

On the first step, “the moving defendant must identify the acts alleged in the complaint that it asserts are protected and what claims for relief are predicated on them. In turn, a court should examine whether those acts are protected and supply the basis for any claims. It does not matter that other unprotected acts may also have been alleged within what has been labeled a single cause of action; these are disregarded at this stage. So long as a court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached with respect to these claims.” (Bonni, supra, at p. 1010, quotation and internal quotation marks omitted.)

“If a cause of action contains multiple claims and a moving party fails to identify how the speech or conduct underlying some of those claims is protected activity, it will not carry its first-step burden as to those claims. The nonmovant is not faced with the burden of having to make the moving party's case for it.” (Bonni, supra, at p. 1011.)

“We are also mindful that, although not every defamation case is subject to the anti-SLAPP statute, defamation claims necessarily involve speech and are therefore more commonly found to be SLAPPs.” (Laker v. Bd. of Trustees of Cal. State Univ. (2019) 32 Cal.App.5th 745, 768, citation omitted.)

Here, all of the alleged activity — creating websites and web accounts, speaking with other people, and encouraging other people to speak and make posts on the Internet — are all core activities protected by the right of free speech.

Furthermore, all of the alleged activity appear to have been undertaken in connection with a public issue:

· the alleged activity involving the use of websites included public discussion of pet stores, policies of pet stores as it relates to dog breeders, policies of pet stores as it relates to vaccination of those pets, and so on;

· the alleged activity involving the contact and coaching of an Instagram influencer (regardless of their age) for the purpose of getting that influencer to make posts that touch on these same issues (even if the contact and coaching also discussed non-public issues, such as stalking and death threats);

· the alleged activity of having that influence post about these same issues (even if those posts also discussed non-public issues, such as stalking and death threats).

Therefore, Defendant has met her burden on the first prong by showing that the alleged activity involves free speech and that such speech contributed to public discussion of various pet-related issues of public importance.

The Court considers each cause of action when analyzing whether Plaintiffs have met their burden to demonstrate a probability of prevailing. (Bonni v. St. Joseph Health Sys. (2021) 11 Cal.5th 995, 1010.)

“Defamation is effected by either of the following: (a) Libel. (b) Slander.” (Civ. Code, § 44.)

“Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, 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.)

“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. Special damage is defined in Section 48a of this code.” (Civ. Code, § 45a.)

“Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which:

“1. Charges any person with crime, or with having been indicted, convicted, or punished for crime;

“2. Imputes in him the present existence of an infectious, contagious, or loathsome disease;

“3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits;

“‘The sine qua non of recovery for defamation . . . is the existence of falsehood.’ Because the statement must contain a provable falsehood, courts distinguish between statements of fact and statements of opinion¿for purposes of defamation liability.¿Although statements of fact may be actionable as libel, statements of opinion are constitutionally protected.” (McGarry v. Univ. of San Diego (2007) 154 Cla.App.4th 97, 112, quoting Letter Carriers v. Austin (1974) 418 U.S. 264, 283.)

“[T]he question is not strictly whether the published statement is fact or opinion. Rather, the dispositive question is whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact.” (Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 385, citations omitted.)

“Whether a statement declares or implies a provable false assertion of fact is a question of law for the court to decide, unless the statement is susceptible of both an innocent and a libelous meaning, in which case the jury must decide how the statement was understood.” (Franklin, supra, at p. 385, citations omitted.)

“To determine whether a statement is actionable fact or nonactionable opinion, we apply a totality of the circumstances test pursuant to which we consider both the language of the statement itself and the context in which it is made.” (Summit Bank v. Rogers (2012) 206 Cal.App.4th 669, 696, citation omitted.)

“In an action for defamation per se, the meaning is so clear from the face of the statement that the damages can be presumed. However, that presumption does not mean [a plaintiff] does not anticipate injury; nor does it mean there is no injury.” (Tilkey v. Allstate Ins. Co. (2020) 56 Cal.App.5th 521, 542, citation omitted.)

“Defamation requires both falsity and injury to reputation; the defamation per se analysis focuses on the latter, and even if context is necessary to show falsity it might not be needed for reputational harm. But a harmful meaning must still be clear to constitute defamation per se.” (Balla v. Hall (2021) 59 Cal.App.5th 652, 690, citations omitted.)

The Parties have submitted very little evidence to the Court regarding the claims at issue.

Defendant submits screenshots of the various websites and Instagram accounts at issue. (Decl. Dayton, Exhs. 1–4.) Whether or not this material is authenticated, most of the relevant portions are inadmissible hearsay.

The first website, thetruthaboutwagmorpets.com, clearly and repeatedly discusses Plaintiffs’ business and business practices, has various documents (including what appear to be a negative review, filings from other cases, screenshots from text messages), makes allegations about Plaintiffs and their business practices. The associated Instagram account also has posts that are directly about Plaintiffs and their business. (Decl. Dayton, Exhs. 1, 3.)

The second website, shelterhopepetshop.com, does not appear to have any discussion of Plaintiffs. The associated Instagram account also does not appear to have any discussion of Plaintiffs. (Decl. Dayton, Exhs. 2, 4.)

Defendant also submits a Google News search of the phrase “Wagmor pets,” which brings up various links. (Decl. Dayton, Exh. 5.)

Finally, among other things, Defendant declares: (1) that she does not own or control the websites or the Instagram accounts; (2) that she did not contact a 13-year-old Instagram influencer about Plaintiffs; (3) that she did not speak with a minor about Plaintiffs; (4) that she did not encourage a minor to make posts about Plaintiffs; and (5) that Defendant is concerned about Plaintiffs’ alleged mistreatment of animals. (Decl. Ballin, ¶¶ 4–5, 7.)

Plaintiffs submits: (1) screenshots of what appears to be either a comments thread or a direct message; (2) a post from the Instagram account for @thetruthaboutwagmorpets; and (3) a newsletter post from the “Shelter Hope Pet Shop Weekly Newsletter.” None of this material is authenticated and most of the relevant portions are inadmissible hearsay. (See Opposition, Exhs. 1–3.)

Plaintiffs also submit: (1) Declaration of Christine Lagrua; and (2) Declaration of Melissa Bacelar.

Much of the Declaration of Christine Lagrua consists of inadmissible hearsay. (See Opposition, Decl. Lagrua, ¶¶ 3–8.) Furthermore, the Declaration of Christine Lagrua lacks credibility because it claims phone calls (with no phone records) and images (with no copies of those images). (Id. at ¶¶ 5, 8.) Lastly, although the Court is not basing its decision on this matter, it is not clear that the Lagrua Declaration is actually signed; the copy attached to the Opposition is unsigned, and the separate copy filed with Court apparently as only a typed signature.

The Declaration of Melissa Bacelar has only one substantive paragraph. Bacelar declares that she “never made any threats against the Minor, nor have I stalked him or followed him. I do not believe anyone associated with Wagmor Pets or Wyler’s Holistic Pet Center, Inc. did either of those things. I cannot imagine why they would do so.” (Decl. Bacelar, ¶ 2.)

The question on the second prong is whether Plaintiffs have demonstrated a probability of prevailing on the claim. (Equilon Enters., supra, 29 Cal.4th at p. 67.)

Plaintiffs have not provided any admissible evidence that would indicate Defendant owns or controls the websites and associated Instagram accounts at issue. Rather, Defendant declares the opposite, and the Court finds her testimony to be credible.

Plaintiffs have not provided any admissible evidence that would indicate Defendant had any contact with a 13-year-old Instagram influencer. Rather, Defendant declares the opposite, and the Court finds her testimony to be credible.

Plaintiffs have not provided any admissible evidence that would indicate Defendant coached anyone to make posts about Plaintiffs or that Defendant made anyone make posts about Plaintiffs. Rather, Defendant declares the opposite, and the Court finds her testimony to be credible.

Plaintiffs have provided evidence that they did not stalk a minor, make death threats, and so on. But that is insufficient for a cause of action of defamation when there is no evidence before the Court that Defendant made such claims or was involved in any way with the making of such claims.

Plaintiffs argue that the Anti-SLAPP Motion is frivolous and request sanctions. (Opposition, pp. 2:18–20, 7:13–18.)

Because the Anti-SLAPP Motion has been granted, there is no basis to award Plaintiffs monetary sanctions.

Defendant Faith Ballin’s Anti-SLAPP Motion is GRANTED. Defendant Faith Ballin is dismissed with prejudice from the Verified Complaint.

“When the plaintiff in an action or special proceeding resides out of the state, or is a foreign corporation, the defendant may at any time apply to the court by noticed motion for an order requiring the plaintiff to file an undertaking to secure an award of costs and attorney’s fees which may be awarded in the action or special proceeding. For the purposes of this section, ‘attorney’s fees’ means reasonable attorney’s fees a party may be authorized to recover by a statute apart from this section or by contract.” (Code Civ. Proc., § 1030, subd. (a).)

“The motion shall be made on the grounds that the plaintiff resides out of the state or is a foreign corporation and that there is a reasonable possibility that the moving defendant will obtain judgment in the action or special proceeding. The motion shall be accompanied by an affidavit in support of the grounds for the motion and by a memorandum of points and authorities. The affidavit shall set forth the nature and amount of the costs and attorney’s fees the defendant has incurred and expects to incur by the conclusion of the action or special proceeding.” (Code Civ. Proc., § 1030, subd. (b).)

“If the court, after hearing, determines that the grounds for the motion have been established, the court shall order that the plaintiff file the undertaking in an amount specified in the court’s order as security for costs and attorney’s fees.” (Code Civ. Proc., § 1030, subd. (c).)

“Even if the defendant establishes the grounds for an undertaking, the trial court may waive the requirement if the plaintiff establishes indigency.” (Alshafie v. Lallande (2009) 171 Cal.App.4th 421, 429, citing Code Civ. Proc., § 995.240 and Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1433.) “In the first instance the party seeking relief from the requirement of posting a bond or undertaking has the burden of proof to show entitlement to such relief.” (Id. at p. 432, quoting Williams v. Freedomcard, Inc. (2004) 123 Cal.App.4th 609, 614, internal quotation marks and additional citation omitted.)

Defendant moves the Court to require Plaintiff Wylder’s Holistic Pet Center, Inc. to post a bond in the amount of $50,000.00. (Motion for Undertaking, p. 15:14–18.) Defendant argues that this undertaking is necessary because (1) there is a reasonable possibility Defendant will be entitled to costs and fees by prevailing in her anti-SLAPP Motion and (2) Plaintiff Wylder’s Holistic Pet Center, Inc. is a Delaware corporation. (Id. at pp. 14:24–15:5.)

The Court does not find that an undertaking is appropriate or necessary here. The phrase “resides out of the state or is a foreign corporation” indicates that “foreign” means out of the country. Moreover, given that Plaintiff Wylder’s Holistic Pet Center, Inc. appears to operate out of Los Angeles, it would be odd to find that reside out of the state. In any case, Defendant Ballin has already prevailed on her anti-SLAPP motion and may immediately move for costs and fees, obviating the immediate need for a bond.