Hupp v. Freedom Communications, Inc.

Filed 11/7/13

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

PAUL HUPP,

Plaintiff and Appellant, E057390

v. (Super.Ct.No. RIC1204151)

FREEDOM COMMUNICATIONS, INC., OPINION

Defendant and Respondent.

APPEAL from the Superior Court of Riverside County. Daniel A. Ottolia, Judge.

Affirmed.

Paul Hupp, in pro. per., for Plaintiff and Appellant.

James E. Grossberg, Ashley I. Kissinger and Levine Sullivan Koch & Schulz LLP

for Defendant and Respondent Freedom Communications Inc. dba The Orange County

On March 22, 2012, plaintiff Paul Hupp filed a complaint against the Freedom

Communications Inc., dba The Orange County Register (the Register), alleging that it

breached its user agreement with Hupp by failing to remove comments made on their

website concerning Hupp.

1
The Register responded by filing a special motion to strike (anti-SLAPP) motion

under Code of Civil Procedure section 425.16.1 After hearing, the trial court granted the

motion to strike Hupp’s complaint.

Hupp appeals. He contends that the action is a garden variety breach of contract

action which is not subject to an anti-SLAPP motion. He also argues that there are

numerous defects in the service of various court documents in connection with the

motion.

FACTS

On March 12, 2012, the Register published on its website an article concerning

public safety pensions in Orange County. Many readers, including Hupp, filed comments

on the article. Many of the postings were between Hupp and defendant Mike Bishop.

The Register alleges that Hupp complained to the author of the pension article about five

postings by Bishop and demanded that they be removed from the website.

In his complaint, Hupp contends that the Register violated its user agreement “by

making public comments and not removing said comment about Plaintiff that includes

but is not limited to; invading the privacy of Plaintiff, harassed Plaintiff, was harmful to

Plaintiff.” Accordingly, Hupp seeks breach of contract damages from the Register.

The Register included a copy of the User Agreement in its appendix. The User

Agreement provides: “The bulletin boards, chat rooms, community calendars, and other

1 Unless otherwise indicated, all further statutory references are to the Code of
Civil Procedure.

2
interactive areas of the Service are provided to users as interesting and stimulating

forums to express their opinions and share ideas and information. We expect people to

differ—judgment and opinion are subjective—and we encourage free speech and the

exchange of ideas. But, by using these areas of the Service, you are participating in a

community that is intended for all of our users. [¶] Therefore, we reserve the right, but

undertake no duty, to review, edit, move, or delete any User Content provided for display

or placed on the Service, at our sole and absolute discretion, without notice to the person

who submitted such User Content.”

As noted above, the Register filed an anti-SLAPP motion under section 425.16,

subdivision (b)(1) instead of answering the complaint.

ANTI-SLAPP MOTIONS

Section 425.16, subdivision (b)(1) authorizes a special motion to strike causes 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 . . . .” The subdivision also provides that

the motion shall be granted unless plaintiff establishes that there is a probability that

plaintiff will prevail on the claim.

Although Hupp contends that his breach of contract cause of action does not refer

to any free speech issue, the statute plainly applies to any cause of action that meets the

statutory requirements. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728,

739.)

3
The statute states the legislative purpose as follows: “The Legislature finds and

declares that there has been a disturbing increase in lawsuits brought primarily to chill the

valid exercise of the constitutional rights of freedom of speech and petition for redress of

grievances. The Legislature finds and declares that it is in the public interest to

encourage continued participation in matters of public significance, and that this

participation should not be chilled through abuse of the judicial process. To this end, this

section shall be construed broadly.” (§ 425.16, subd. (a).)

Accordingly, the anti-SLAPP motion is directed against SLAPP suits. “Litigation

which has come to be known as SLAPP is defined by the sociologists who coined the

term as ‘civil lawsuits . . . that are aimed at preventing citizens from exercising their

political rights or punishing those who have done so.’ [Citation.] The paradigm SLAPP

is a suit filed by a large developer against environmental activists or a neighborhood

association intended to chill the defendants’ continued political or legal opposition to the

developers’ plans. [Citations.] SLAPP’s, however, are by no means limited to

environmental issues [citation], nor are the defendants necessarily local organizations

with limited resources. [Citation.] [¶] The favored causes of action in SLAPP suits are

defamation, various business torts such as interference with prospective economic

advantage, nuisance and intentional infliction of emotional distress. [Citation.] Plaintiffs

in these actions typically ask for damages which would be ruinous to the defendants.

[Citations.] [¶] SLAPP suits are brought to obtain an economic advantage over the

defendant, not to vindicate a legally cognizable right of the plaintiff. [Citation.] . . . [¶]

Thus, while SLAPP suits ‘masquerade as ordinary lawsuits’ the conceptual features

4
which reveal them as SLAPP’s are that they are generally meritless suits brought by large

private interests to deter common citizens from exercising their political or legal rights or

to punish them for doing so. [Citation.]” (Wilcox v. Superior Court (1994) 27

Cal.App.4th 809, 815-817, overruled on other grounds in Equilon Enterprises v.

Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5 (Equilon).)

While Hupp’s complaint does not generally fit the above description of a typical

SLAPP suit, it is subject to an anti-SLAPP motion if it fits within the statutory definition,

which includes having the purpose of punishing the Register for exercising its free speech

rights. Hupp’s appeal on this point provides only two sentences of argument and does

not address the issues presented by the trial court’s decision.

THE ANTI-SLAPP MOTION IN THIS CASE

In reviewing an appeal from the decision granting the anti-SLAPP motion, we

determine de novo (1) whether the defendants made the threshold showing that the

complaint arises from protected activity; and (2) if so, whether plaintiff has demonstrated

a probability of prevailing on its claim. (Equilon, supra, 29 Cal.4th at p. 67.)

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.” (Ibid.)

Applying these principles to this case, we conclude that defendants have

established that the gravamen of the complaint was based on protected activity, and that

plaintiff has not sufficiently demonstrated a probability of prevailing on the merits.

5
The Register’s motion first argues that the Register’s actions arise from its acts in

furtherance of its free speech rights. It relies on the definitions of an act in furtherance of

a person’s right of free speech in section 425.16, subdivision (e). That section provides

four categories of such acts. The Register cites the final two: “(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

constitutional right of petition or the constitutional right of free speech in connection with

a public issue or an issue of public interest.” (§ 426.16, subd. (e)(3) & (4).)

The Register then cites Tamkin v. CBS Broadcasting, Inc. (2011) 193 Cal.App.4th

133. In that case, the court held that “[a]n 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. [Citation.]”

(Id. at p. 143.) The Register contends that its maintenance of a website that publishes

articles of public interest, such as the pension article in this case, and that allows user

comments on such articles, facilitates free speech and the exchange of ideas and opinions

on the Internet.

Our Supreme Court has held that “[w]eb sites accessible to the public . . . are

‘public forums’ for purposes of the anti-SLAPP statute. [Citations.]” (Barrett v.

Rosenthal (2006) 40 Cal.4th 33, 41, fn. 4 (Barrett).) Barrett went on to hold that the

Communications Decency Act of 1996 (47 U.S.C. § 230) confers “broad immunity

against defamation liability for those who use the Internet to publish information that

originated from another source.” (Barrett at p. 39.) It concluded that “section 230

prohibits distributor liability for Internet publications.” (Id. at p. 40.)

6
Subsequently, Barrett was followed by Wong v. Jing (2010) 189 Cal.App.4th

1354. It held that “although ‘not every [w]eb site post involves a public issue’ [citation],

consumer information that goes beyond a particular interaction between the parties and

implicates matters of public concern that can affect many people is generally deemed to

involve an issue of public interest for purposes of the anti-SLAPP statute. [Citations.]”

(Id. at p. 1367.)

In the current case, the initial exchange of comments between Hupp and Bishop

concerned the pension story. The tenor of the exchange changed when Bishop said he

had made a Google search on Hupp and asked if he was a vexatious litigant. In its

memorandum of points and authorities in support of the anti-SLAPP motion, the Register

essentially argued that Hupp was such a well-known vexatious litigant that he had been

the subject of discussion on other websites.2

Bishop also provided a link to a forum which was discussing a petition for

rehearing en banc filed by Hupp in the Ninth Circuit Court of Appeals. The petition

contains especially extreme language that can be interpreted as threats directed at the

judges themselves, and it received wide comment on the Internet.3 The Register

therefore argues that the subject of vexatious litigants was also an issue of public interest.

2 The Register found it necessary to include in its appendix 145 pages of docket
sheets in federal district court cases filed by Hupp and records of state court actions in
which his name appears. It also includes two district court orders declaring Hupp to be a
vexatious litigant. {RA 195-198}

3 The Register also provides us with a copy of the offensive petition for hearing
en banc, followed by eight Internet articles and forum postings on various websites
[footnote continued on next page]

7
We follow Barrett and the other cases cited above and conclude that the Register’s

actions arose from its acts in furtherance of its free speech rights. Maintaining a forum

for discussion of issues of public interest is a quintessential way to facilitate rights, and

the Register has no liability for doing so.

For the same reason, we conclude that Hupp has not shown a probability of

prevailing in the action. He has not provided any argument on this issue. As Barrett

states, the Communications Decency Act of 1996 (47 U.S.C. § 230) “prohibits

‘distributor’ liability for Internet publications.” (Barrett, supra, 40 Cal.4th at p. 40.)

Thus, the Communications Decency Act completely bars this type of lawsuit against an

Internet publisher. Accordingly, subject to the following section, the trial court properly

granted the Register’s anti-SLAPP motion.

DOCUMENT SERVICE ISSUES

Hupp’s complaint was filed on March 22, 2012. It was served on July 2, 2012.

The Register had 30 days to answer or otherwise respond to the complaint. (§ 412.20,

subd. (a)(3).)

On July 24, 2012, within the 30 day period, the Register filed an ex parte motion

to extend the time to file an answer or other responsive pleading. It requested an

extension because it planned to file an anti-SLAPP motion by August 31, 2012.

[footnote continued from previous page]
concerning the petition. {RA 232, 241, 258-322} It is interesting to note that, despite his
alleged privacy concerns, Hupp participated in the Volokh Conspiracy postings, even
though many details of his life were openly discussed.{RA 288-312}

8
The request noted that such a motion may be filed within 60 days of the service of

the complaint. The Register’s counsel also stated that, on July 16, 2012, she called and

left a telephone message for Hupp, and also sent him an e-mail regarding the extension

request. “Mr. Hupp promptly responded to the email, but it is not clear whether he

opposed the application.”

The motion was granted and the judicial officer ordered that a copy be served on

all parties that had appeared in the case. Hupp acknowledges receipt of the order on July

30, 2012.

On August 31, 2012, the anti-SLAPP motion was filed. The motion was set for

hearing on September 28, 2012. A proof of service by mail was filed with it and the

Hupp denies receiving the motion.

On September 13, 2012, the process server filed an amended proof of service of

the motion documents. The document states that the prior proof of service “inadvertently

contained incorrect information with respect to service.” The amended proof of service

states that the documents were served “by leaving copies of the papers with the security

guard at the front of the gated community in which the plaintiff’s residence is

contained . . . .” This is a permissible means of service. (Bein v. Brechtel-Jochim Group,

Inc. (1992) 6 Cal.App.4th 1387.)

However, Hupp subsequently provided a declaration of the gate guard that states

that he turned the process server away; the process server did not leave any documents

9
with him, and he would not have accepted them. The gate guard was apparently unaware

of section 415.21.

On September 24, 2012, Hupp filed an ex parte motion to strike the anti-SLAPP

motion for lack of a proper service. However, he acknowledged receipt of the motion on

September 13, 2012 by Federal Express. This statement refers to a copy of the motion

papers which was sent on September 12, 2012. Hupp thus states that he only had 15

calendar days to respond before the September 28 hearing.

The ex parte motion filed by Hupp on September 24, 2012, was titled as a motion

to strike the anti-SLAPP motion for lack of proper service. However, Hupp refers to it as

opposition papers to the anti-SLAPP motion.

The Register states that a case management conference was held on October 10,

2012 and Hupp stated that the motion was actually his opposition to the anti-SLAPP

motion. Apparently, the court considered it as an opposition brief, as did the Register.

The Register then filed a reply on October 11, 1012.

On September 26, 2012, the Register’s counsel filed a motion for a short

continuance of the hearing set for September 28, 2012. Counsel stated that she was

required to have minor surgery on September 25, 2012, and that she would be unable to

attend the scheduled hearing. Counsel also stated that she left a telephone message with

Hupp on September 17, and had sent him a detailed email on September 13th. The

declaration in support of the continuance request was mailed on September 17, 2012, and

a proof of service by mail was filed on September 25, 2012.

10
The request for a continuance was granted and the hearing on the motion was held

on October 18, 2012. Our record does not contain a transcript of the hearing, but the

court granted the anti-SLAPP motion, presumably for the reasons discussed above.

From the foregoing, we conclude that Hupp admittedly received the moving

papers by Federal Express on September 13, 2012. He therefore had 34 calendar days

before the rescheduled hearing on October 18. (§ 12.) He therefore had actual notice of

the action in time to defend the anti-SLAPP motion. (Ellard v. Conway (2001) 94

Cal.App.4th 540, 547-548.)

Hupp cites section 1005. That section calls for moving papers to be served and

filed at least 16 court days before the hearing. If, as here, an overnight delivery service is

used, two calendar days are added on for a total of 18 days. Because of the continuance,

the Register’s motion was filed long before 18 days before the hearing.

Opposing papers must be filed within nine court days before the hearing or, in this

case, October 5, 2012. (§ 1005.) Thus, Hupp had 16 court days (from September 13 to

October 5) to prepare his response.

Hupp argues that the two ex parte motions to extend the dates should affect the

time computations. As discussed above, the first motion merely extended the time to file

the motion. It did not affect the time to respond to the motion.

The second ex parte motion continued the hearing on the anti-SLAPP motion from

September 28 to October 18. Although the time on the original hearing date (September

13 to 28) was insufficient, Hupp had sufficient time to file documents nine court days

before the October 18 hearing date.

11
The time properly began to run when the motion was admittedly received on

September 13, not counting prior service attempts.4 The calendar was not reset by the ex

parte continuance request and Hupp does not cite any authority to establish that an ex

parte continuance started a new time running on September 27, the date of the

continuance request. We therefore apply the statutes and find that the Register complied

with all service requirements.

4 Although the alleged service on the guard at the gated community on August 31,
2012 was disputed, the dispute is irrelevant to the outcome because of the Federal
Express service of the motion documents, which Hupp admits he actually received on
September 13, 2012.
Since we do not have a transcript of the October 18 hearing, we do not know if the
court discussed these issues or not. Hupp says the court took no action to address these
issues, but he does not say if any rulings were made. {AOB 8}

12
DISPOSITION

The trial court’s order granting the Register’s special motion to strike plaintiff’s

complaint is affirmed. The Register to recover its costs on appeal.5

CERTIFIED FOR PUBLICATION

RAMIREZ
P. J.

We concur:

McKINSTER
J.

KING
J.

5 At oral argument, counsel for the Register asked this Court to direct the trial
court to award and determine attorney fees under section 425.16, subdivision (c), which
provides that a “prevailing defendant on a special motion to strike shall be entitled to
recover his or her attorney’s fees and costs” and Mendoza v. ADP Screening (2010) 182
Cal.App.4th 1644, which holds that this mandatory provision applies to attorney fees and
costs incurred in responding to the unsuccessful plaintiff’s appeal. We decline to provide
such direction to the trial court because we trust that it will follow the law on this point.