Filed 12/4/13 Corzac v. City and County of San Francisco CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
CORZAC, INC. et al.,
Plaintiffs and Appellants,
A135767
v.
THE CITY AND COUNTY OF SAN (San Francisco City & County
FRANCISCO et al., Super. Ct. No. CGC-10-505813)
Defendants and Respondents.
I.
INTRODUCTION
Clarice Lacau and Ricci Cornell owned a restaurant and live entertainment venue
located on property leased from the City and County of San Francisco (City), acting
through the San Francisco Port Commission (Port). The City terminated the lease
following two fatal shootings outside their establishment. Media coverage included
statements from Port officials regarding the termination of the lease. Port officials stated
that, among other grounds for terminating the lease, the business was not operating
within the terms of the lease. Lacau, Cornell, and their business sued the City, the Port,
and certain Port officials (respondents). This appeal concerns only a cause of action for
defamation, which was premised on the allegedly false statements regarding the failure to
comply with the lease.
1
Respondents moved in the trial court to strike the defamation cause of action
pursuant to California’s anti-SLAPP statute (Code Civ. Proc., § 425.16).1 The trial court
granted the motion, finding (a) respondents’ statements regarding the termination of the
lease arose from protected activity, and (b) plaintiffs had failed to show they could
prevail on their defamation claim. We agree with the trial court, and affirm.
II.
FACTUAL AND PROCEDURAL BACKGROUNDS
Lacau and Cornell leased a building located at Pier 50 on San Francisco’s
waterfront beginning in 1994. From this location they ran a business called Jelly’s, a
Dance Café (Jelly’s). Although the lease provided the premises “shall be used for a
Restaurant and Bar and for no other purposes,” Jelly’s provided musical entertainment
from its inception, according to Cornell. This included salsa dancing and other dancing
events. Cornell believed Port officials were aware that Jelly’s provided dancing and
musical entertainment, and that they had no objections. Jelly’s also had licenses from
other City departments, including the San Francisco Entertainment Commission
(Entertainment Commission).
The live music and salsa dancing at Jelly’s was popular. Unfortunately, there
were three shootings, two fatal, outside of the establishment following events at Jelly’s.
Following the second fatal shooting on July 12, 2010, the Entertainment Commission
suspended the establishment’s operating license for seven days. Following the
suspension, the owners of Jelly’s met with the police to develop a plan that would satisfy
the police and the Entertainment Commission that Jelly’s could safely resume operations.
On July 19, 2010, however, the Port, acting through Susan Reynolds, the deputy director
of its real estate department, issued a 30-day notice of termination of the lease. At the
time, the tenancy was month to month.
1
SLAPP is an acronym for “strategic lawsuit against public participation.”
(Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57.) All further
statutory references are to the Code of Civil Procedure unless otherwise noted.
2
The July 2010 fatal shooting was reported in the San Francisco media. Given that
it was not the first shooting connected to Jelly’s, and there had been other recent
shootings linked to nightclubs in the City, the media followed up on the story. There
were reports not only about the shooting, but also about the suspension of the business’s
entertainment license and the subsequent lease termination. One news account described
the shooting as “The killing that shoved Jelly’s into the limelight . . . .”
A July 20, 2010 story published in the San Francisco Examiner newspaper
reported the termination of the lease (“Port of SF boots Jelly’s club after fatal shooting”).
The story included a quote from Port spokeswoman Renee Dunn Martin: “We just felt
that it’s in the best interest of the Port, and the best interests of the public, that we not
continue their lease.” Martin continued: “It’s really more about concern about public
safety, from the Port’s perspective.” According to the story, Martin also commented that
the police had been called to Jelly’s numerous times over the years, and that the lease
permitted a full-service restaurant, not a nightclub.
Patrons of Jelly’s came forward to support the establishment. A July 28, 2010
story in the Bay City News reported on plans by supporters of Jelly’s to attend an
Entertainment Commission meeting (“Jelly’s Supporters Protest Closing of Club
Following Shooting”). Once again the story included remarks from Martin, who
indicated the shooting was the main reason for the eviction. Martin also pointed to noise
complaints and to the Port’s view that Jelly’s was operating outside its lease as a dance
club when the lease provided for a full-service restaurant. The story quoted Martin as
saying, “It might be the public’s perspective that this is a great club and many people
enjoy going there, and I can understand that, but at the same time we have a contract
agreement with the leaseholders there . . . . [¶] When they go outside of their contract
agreement, that gives us the right to exercise contract termination if we feel that’s
necessary, which we obviously did.” Martin denied a claim by Jelly’s supporters that the
Port was evicting Jelly’s in order to reclaim valuable waterfront property for
redevelopment.
3
A press release dated August 9, 2010, and signed by Lacau and Cornell,
announced a “Protest Rumba” that was to take place in front of the Port offices on
August 13. The release stated that Jelly’s was being evicted after complaining about the
Port’s sewage system. The release suggested the stated reasons for the eviction—the
shooting and lease violations—were a pretext for the eviction. Members of the
community were encouraged to support Jelly’s by attending the protest, and by signing an
online petition to save Jelly’s.
Eventually, Lacau, Cornell, Jelly’s, and a corporate operating entity, CorZac, Inc.,
sued over the eviction of Jelly’s. In a first amended complaint for damages and
injunctive relief (FAC), they accused the City, the Port and others of breaching the lease,
and retaliating against Jelly’s for complaining about the Port’s sewage system. Plaintiffs
alleged: “Since June of 2010, Jelly’s has repeatedly told [respondents] that the Port’s
sewage system around Jelly’s is not functioning properly and causing serious, ongoing
damage to both Jelly’s and the environmental health of the San Francisco Bay.
The complaint included a cause of action for defamation against respondents
alleging they made false statements about plaintiffs to the media that were published for
“public consumption.” The general factual allegations of the FAC attributed the
defamatory statements to Martin and Reynolds. The complaint declared: “By falsely
alleging that Jelly’s had engaged in illegitimate and unauthorized operations, the Port
damaged the reputations of Jelly’s and its owners.”
Respondents filed a special motion to strike the defamation cause of action
pursuant to section 425.16. They contended that statements by Martin and Reynolds
were protected activity under the anti-SLAPP statute, and that plaintiffs could not
demonstrate a probability of success on the merits of their defamation claim.
Respondents argued that plaintiffs could not prevail on the merits because the statements
were true, privileged, and made without the actual malice necessary to establish a cause
of action for defamation under the circumstances of the case.
Respondents submitted declarations from Martin and Reynolds in support of their
motion. Martin described her duties as the “Manager of Communication for the Port of
4
San Francisco,” which included serving as media spokesperson for the Port. Martin
explained that following the issuance of the 30-day notice to terminate the lease, she
spoke to Reynolds about the matter. Reynolds told Martin the lease was being terminated
primarily based on public safety concerns arising from the shootings. Reynolds also
stated that Jelly’s was operating outside of its lease. When the media contacted Martin
for the Port’s response to plaintiffs’ claim the eviction was improper, Martin relayed
Reynolds’s statement of reasons for the eviction.
Reynolds declared that she was responsible for managing over 500 commercial
tenants, and for supervising the work of the Port’s real estate department staff. She
reported to the Port’s executive director as well as to the Port itself. She was vested with
the authority to, and did, issue the 30-day notice to terminate the Jelly’s lease. She also
communicated with the media from time to time on Port leasing issues. She recalled
being contacted by the San Francisco Chronicle newspaper regarding a story it was
preparing about the termination of the lease. She told the reporter Jelly’s was being
evicted for public safety reasons related to the shootings outside the establishment. She
denied the lease was being terminated in retaliation for complaints about the Port’s
sewage system.
Plaintiffs implicitly conceded that the Port officials’ statements were protected
activity by offering no argument on the point in their opposition to the motion to strike.
Instead, they focused on demonstrating that their defamation cause of action had merit.
They also asked for the opportunity to depose Martin. Plaintiffs supported their
opposition with a declaration from Cornell, who described Jelly’s business and the
apparent acquiescence by Port officials in how the business was conducted. Plaintiffs
also submitted transcript excerpts from a deposition Martin gave in an unlawful detainer
action the City filed against them, along with copies of the San Francisco Examiner and
Bay City News articles that contained Martin’s statements.
The trial court granted the motion to strike. The court concluded the defamation
cause of action arose from protected activity, and that plaintiffs had failed to show the
claim had the requisite minimal merit. With respect to the merits, the court found any
5
statement by Reynolds was privileged under Civil Code section 47, subdivision (a)
(privileged publication in the proper discharge of an official duty). With respect to
statements made by Martin, the court found that plaintiffs were limited public figures,
and that they had failed to show Martin had acted with reckless indifference. The court
denied plaintiffs’ request to depose Martin on the ground any additional information
elicited from Martin would not change the court’s analysis. The court also denied
plaintiffs’ request, made at the hearing on the motion to strike, to depose Reynolds for
failure to make the request in the opposition papers. CorZac, Inc. and Jelly’s appealed
from the court’s order.2
III.
DISCUSSION
A. The Applicable Legal Principles
“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.”
(§ 425.16, subd. (b)(1).)
Our Supreme Court has succinctly summarized the two steps involved in applying
the anti-SLAPP statute: “ ‘First, the court decides whether the defendant has made a
threshold showing that the challenged cause of action is one “arising from” protected
activity. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it
then must consider whether the plaintiff has demonstrated a probability of prevailing on
2
“Plaintiffs’ Notice of Appeal” states CorZac, Inc. and Jelly’s appeal from the
order granting the special motion to strike. There is no explanation in the record or the
briefs as to why Lacau and Cornell did not join in the appeal. Further, the record is not
clear as to whether Jelly’s is a separate entity or simply a “dba” (doing business as) for
CorZac, Inc., or Lacau and Cornell. In any case, from this point forward we will use the
term “appellants” in order to reflect the fact that not all of the plaintiffs are parties to this
appeal.
6
the claim.’ [Citation.]” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811,
819-820 [Oasis West].) Only a cause of action that arises from protected speech or
petitioning and lacks even minimal merit is subject to being stricken under the anti-
SLAPP statute. (Id. at p. 820.)
We review an order granting or denying an anti-SLAPP motion to strike de novo.
(Oasis West, supra, 51 Cal.4th at p. 820.) “In considering the pleadings and supporting
and opposing declarations, we do not make credibility determinations or compare the
weight of the evidence. Instead, we accept the opposing party’s evidence as true and
evaluate the moving party’s evidence only to determine if it has defeated the opposing
party’s evidence as a matter of law. [Citation.]” (Albanese v. Menounos (2013) 218
Cal.App.4th 923, 928-929.)
B. The First Prong—Protected Activity
For the first time on appeal, appellants argue the Port officials’ statements did not
arise from protected activity. In their opening brief, however, they offer only half of an
argument—they discuss only one of the two grounds respondents urged below for finding
protected activity. Although appellants expand their discussion to encompass both
grounds in their reply brief, we treat the first prong of the anti-SLAPP analysis as having
been established by waiver under these circumstances. (See DiCola v. White Brothers
Performance Products, Inc. (2008) 158 Cal.App.4th 666, 676 [appellate court not obliged
to consider arguments not advanced in the trial court].) Even if not waived, we would
conclude that respondents carried their initial burden of demonstrating that Martin’s and
Reynolds’s statements arose from an “act in furtherance of the person’s right of petition
or free speech . . . in connection with a public issue.” (§ 425.16, subd. (b)(1).)
Among the exemplars of protected speech set forth in the anti-SLAPP statute are
statements “made in a place open to the public or a public forum in connection with an
7
issue of public interest.” (§ 425.16, subd. (e)(3).)3 Here, the statements were reported in
the media (see Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1038
[newspaper is a public forum]) in connection with at least three issues of public concern
and importance: (1) criminal acts on Port property, (2) the leasing and use of Port
property, and (3) the alleged neglect of the Port sewage system. Appellants’ claim that
there was no public interest in the parties’ mere contractual dispute frames the issue too
narrowly, and is refuted by their own pleadings. (See Maranatha Corrections, LLC v.
Department of Corrections & Rehabilitation (2008) 158 Cal.App.4th 1075, 1086 [state
official’s assertion that private contractor had wrongfully withheld taxpayer funds is a
matter of concern and interest to the public] (Maranatha).)
Therefore, both on grounds of waiver as well as on the merits, we conclude that
the defamation cause of action fell within the protection of the anti-SLAPP statute.
C. The Second Prong—The Probability of Prevailing on the Claim
1. The Burden of Proof
Having determined that the Port officials’ statements arose from protected activity,
the burden shifts to appellants to demonstrate their complaint is both legally sufficient
and supported by a prima facie showing of facts to sustain a favorable judgment. (Oasis
West, supra, 51 Cal.4th at p. 820.) Appellants, however, point out that the trial court
found they could not prevail on their defamation claim based on affirmative defenses
asserted by respondents. They therefore rely on authority for the proposition that the
burden remained with respondents to prove their defenses. (See Premier Medical
Management Systems, Inc. v. California Ins. Guarantee Assn. (2006) 136 Cal.App.4th
464, 477 [defendant advancing affirmative defense in special motion to strike bears
burden of proof on the defense].)
3
Arguably the statements were also “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.” (§ 425.16, subd. (e)(2).) It is not necessary, however, to
decide that issue.
8
There is counter authority that suggests the burden of proof remains with the
plaintiff on the second prong, even when the defendant relies on an affirmative defense.
(Birkner v. Lam (2007) 156 Cal.App.4th 275, 285.) The plaintiff meets that burden by
showing the defense is not applicable as a matter of law, or by a prima facie showing of
facts which, if accepted by the trier of fact, would negate the defense. (Ibid.; see No
Doubt v. Activision Publishing, Inc. (2011) 192 Cal.App.4th 1018, 1029, fn. 4.)
Regardless of where the burden lies in this case, we are satisfied that respondents
introduced sufficient, uncontradicted evidence to establish their affirmative defenses.
2. The Official Duty Privilege
The trial court found the statements made by Reynolds were privileged under Civil
Code section 47, subdivision (a), which protects statements made “[i]n the proper
discharge of an official duty.” (Ibid.) Sometimes called the executive officer privilege
(Morrow v. Los Angeles Unified School Dist. (2007) 149 Cal.App.4th 1424, 1440) or the
official duty privilege (Rothman v. Jackson (1996) 49 Cal.App.4th 1134, 1149, fn. 6), the
privilege applies “to all state and local officials who engage in the policy-making
process.” (Royer v. Steinberg (1979) 90 Cal.App.3d 490, 501.) The privilege is absolute
and it “protects any statement by a public official, so long as it is made (a) while
exercising policy-making functions, and (b) within the scope of his official duties.”
(Ibid.)
Reynolds managed the commercial leases of the Port. She was vested with the
authority and discretion to terminate the Jelly’s lease, without consulting with the Port.
After the July 2010 shooting, she decided to terminate the lease for public safety reasons.
She relayed that reason to Martin, the Port spokesperson, along with a secondary reason:
Jelly’s was “operating outside its lease as a late-night dance club.”
Reynolds’s decision to terminate the lease was no mere ministerial act, as argued
by appellants. It was a discretionary, policy-making decision made based on the
particular circumstances, including violence on Port property. Reynolds’s duties also
included communicating with the media regarding Port leasing issues, and Jelly’s
9
compliance with the Port’s lease. The official duty privilege protected her statements,
regardless of whether she was right or wrong about Jelly’s complying with its lease.
In support of their ministerial act argument, appellants rely on Sanborn v.
Chronicle Pub. Co. (1976) 18 Cal.3d 406 (Sanborn). They argue the case is “on all fours
with the instant case.” We disagree.
The defendant in Sanborn was a county clerk who mistakenly released funds that
had been deposited with the clerk’s office. When a newspaper reporter contacted the
defendant about the incident, defendant said the plaintiff had “outtalked” him and that it
“was a real con job.” (Sanborn, supra, 18 Cal.3d at p. 410.) The Supreme Court held the
official duty privilege did not protect the defendant because he was not exercising policy-
making functions when he defamed the plaintiff. (Id. at p. 413.) The Supreme Court
observed that a government official’s discussions with the press regarding the functioning
of his or her office would seem to fall within the category of routine, ministerial duties.
(Id. at p. 415.)
Sanborn is inapposite. Reynolds was not merely discussing with the media how
her office functioned. She was relaying the reasons for her discretionary decision to
terminate a Port lease. There was nothing routine or ministerial about the decision.
As respondents suggest, a more relevant case is Maranatha, supra, 158
Cal.App.4th 1075. That case involved a former director of the state Department of
Corrections and Rehabilitation, who had terminated a contract between the state and a
private contractor. The director conveyed her decision to the plaintiffs in a letter that
stated the reasons for her decision. Among those reasons was the director’s belief that
the plaintiffs had misappropriated over $1 million. (Id. at p. 1081.) The letter was later
released to the public. The plaintiffs claimed the letter defamed them. The Maranatha
court, however, found the official duty privilege protected the director’s statements in the
letter. (Id. at p. 1091.) The court rejected comparisons to Sanborn, supra, 18 Cal.3d 406,
and noted the letter demonstrated careful consideration of an important issue by a
policymaking state official. (Maranatha, supra, 158 Cal.App.4th at p. 1089.)
10
Public officials have a general duty to keep the public informed about public
business. (Maranatha, supra, 158 Cal.App.4th at pp. 1088-1089.) As part of that duty,
public officials must be allowed to defend, in public, their policy decisions. (See ibid.;
see also Tutor-Saliba Corp. v. Herrera (2006) 136 Cal.App.4th 604, 615 [city attorney
had the authority if not the duty to express opinion about litigation he initiated on behalf
of city].) Here, Reynolds made a policy decision to terminate the Jelly’s lease and, as
part of her duties, gave an explanation for her decision that was conveyed to the public.
Appellants insist that respondents failed to establish Reynolds’s statements were
the product of discretionary policymaking. (See Neary v. Regents of University of
California (1986) 185 Cal.App.3d 1136, 1143 [public official’s declaration stating legal
conclusion that release of report was a policy decision was insufficient to establish
official duty privilege].) They note that Reynolds, in her declaration, does not mention
lease violations as a reason for terminating the lease. That reason is recounted, second
hand, in Martin’s declaration. Appellants further believe “no one who gave any
consideration to the issue could credibly accuse Jelly’s of illegally allowing dancing or
live entertainment, given its plain lease terms and 15-year history.”
On the contrary, a cursory review of the lease raises questions as to whether it
permitted dancing or live entertainment. But what the lease allowed or did not allow, or
the effect of acquiescence by Port officials, are questions not material to this appeal.4
What is important is that the record shows the Jelly’s lease became controversial, whether
as a result of the shootings, or, as appellants allege, their complaints about the Port’s
sewage system. Reynolds made a decision to terminate the lease. Reynolds spoke to
Martin and gave her the reasons for terminating the lease, which included Reynolds’s
4
In the same vein, respondents argue the Port officials’ statements regarding the
lease were not defamatory because they were true. (Campanelli v. Regents of University
of California (1996) 44 Cal.App.4th 572, 581 [truth is absolute defense to any libel
action].) The trial court, in granting the motion to strike, did not rely on this argument.
We, too, decline to wade into an unnecessary thicket of contract interpretation.
11
belief that Jelly’s was not complying with its lease. Reynolds’s statement of reasons was
protected by the official duty privilege.
3. Appellants Were Limited Public Figures
The trial court found that with respect to statements made by Martin, appellants
were limited public figures. A public figure must prove an alleged defamatory statement
was made with actual malice—that the defendant knew the statement was false or made
the statement with reckless disregard of whether it was false or not. (Khawar v. Globe
Internat., Inc. (1998) 19 Cal.4th 254, 262-263.) This elevated standard flows from
federal constitutional limits on state defamation law. (See New York Times Co. v.
Sullivan (1964) 376 U.S. 254, 264-265; Curtis Publishing Co. v. Butts (1967) 388 U.S.
130, 154-155.)
Some individuals occupy positions of such persuasive power and influence that
they are considered public figures for all purposes. (Gertz v. Robert Welch, Inc. (1974)
418 U.S. 323, 345.) A nominally private figure, however, can become a public figure for
a limited range of issues by voluntarily injecting him or herself into a particular public
controversy. (Id. at p. 351.) Of course, mere involvement in a matter the media deems to
be of interest to the public does not, in and of itself, make a person a public figure.
(Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 254.) “[W]hen called
upon to make a determination of public figure status, courts should look for evidence of
affirmative actions by which purported ‘public figures’ have thrust themselves into the
forefront of particular public controversies.” (Id. at pp. 254-255.) Whether a plaintiff in
a defamation action is a public figure is a question of law. (Khawar v. Globe Internat.,
Inc., supra, 19 Cal.4th at p. 264.)
California courts have examined three factors to determine whether an individual
is a limited public figure. “First, there must be a public controversy, which means the
issue was debated publicly and had foreseeable and substantial ramifications for
nonparticipants. Second, the plaintiff must have undertaken some voluntary act through
which he or she sought to influence resolution of the public issue. In this regard it is
sufficient that the plaintiff attempts to thrust him or herself into the public eye. And
12
finally, the alleged defamation must be germane to the plaintiff’s participation in the
controversy.” (Ampex Corp. v. Cargle (2005) 128 Cal.App.4th 1569, 1577, citing Copp
v. Paxton (1996) 45 Cal.App.4th 829, 845-846.)
We have already identified the principal public controversy involving Jelly’s that
led to the termination: violence on its leased Port property. In addition, Jelly’s itself
admits it injected an issue into the public domain as to whether the Port failed adequately
to respond to complaints regarding its sewage system. These are matters of clear public
interest to the San Francisco community.
Moreover, appellants deliberately added to the public debate concerning its
relationship with the Port and its leasehold interest when they attempted to use several
methods to sway public opinion and to influence public officials to resolve the
controversies in their favor. For example, appellants met with the police to develop
safety measures. The Entertainment Commission held at least one hearing on violence
around Jelly’s, and it appears appellants persuaded that commission to allow Jelly’s to
continue to operate. Furthermore, appellants attempted to rally public support through an
online petition and an organized protest. The July 28, 2010 Bay City News article
regarding the mobilization of supporters of Jelly’s included comments from appellants’
attorney, who defended Jelly’s and contested the Port officials’ statements. (See Rudnick
v. McMillan (1994) 25 Cal.App.4th 1183, 1190 [plaintiff can become limited public
figure by voluntary act of discussing matter with the press].) The article also noted that
an online petition, linked to the Jelly’s website, had been electronically signed by 282
people.
Therefore, the record amply supports the conclusion that appellants intentionally
thrust themselves into the public eye. Their reason for doing so was legitimate and
understandable—to protect their business. The Port officials’ alleged defamatory
statements, however, were made in the course of their duties and were germane to the
controversy over whether appellants should be allowed to continue to lease Port property.
Under these circumstances, appellants were indeed limited public figures for purposes of
defamation law, as correctly found by the trial court.
13
Nevertheless, appellants argue this is a case of their first being made public figures
based on the Port’s defamatory statements; their defensive actions came only later. (See
Hutchinson v. Proxmire (1979) 443 U.S. 111, 135 [those charged with defamation cannot
by their own conduct create their own defense by making the claimant a public figure].)
Appellants’ argument is inconsistent with the allegations of their FAC, and with
the evidence submitted in connection with the motion to strike. For example, appellants
alleged that respondents retaliated against them for exercising their First Amendment
rights: “[Respondents’] attempts to evict Jelly’s, and [respondents’] refusal to fix the
sewage pipes in the surrounding area . . . are adverse actions taken in retaliation against
Jelly’s communications with the Port and with the Press concerning serious problems
with the Port’s sewage system.”
Thus, according to their own pleading, appellants initiated the controversy by
going to the media to complain about the Port’s sewage system. It is only after this
occurred that appellants allege respondents retaliated by terminating the lease. Of course,
the complete record paints a slightly different picture, showing that it was the fatal
shooting, not sewer issues, that led to appellants’ need to defend their business. In either
case, however, the timing of the alleged defamatory statements in the sequence of events
indicates that the reasons for Jelly’s public controversy, be it violence associated with the
club’s operations, or complaints about the Port’s sewer system, predated the termination
of the lease, and the alleged defamatory statements by Reynolds and Martin.
For these reasons Hutchinson v. Proxmire, supra, 443 U.S. 111, a case relied on
by appellants, is not applicable. There, the plaintiff professor was forced to defend
himself against statements that his government-funded research activities were a waste of
money. Up to that point, the professor had labored in relative obscurity and would not
have been in the public eye but for the statements of his detractors. (Id. at p. 135.) When
the defendants singled out his research for scorn, the professor responded. The fact that
the press reported his response to his detractors did not make him a public figure. (Id. at
pp. 135-136.)
14
More germane are cases relied on by respondents comparing appellants to other
nominally private individuals who became public figures by lobbying on behalf of their
businesses. (See Mosesian v. McClatchy Newspapers (1991) 233 Cal.App.3d 1685, 1701
[applicant for horse racing license who thrusts himself into center of dispute to influence
the decision-makers steps from a cloak of privacy into public view]; Hofmann Co. v. E. I.
Du Pont de Nemours & Co. (1988) 202 Cal.App.3d 390, 404 [real estate developer who
sought to influence public officials and affect the public decision process for determining
land use possesses attributes of a public figure].)
Therefore, we conclude that for purposes of the defamation claim appellants were
limited public figures, and thus, were required to prove actual malice in order to prevail.
4. No Evidence of Malice
Appellants contend they made a prima facie showing of actual malice because no
Port official could credibly assert Jelly’s was violating its lease. We have already
rejected this argument (see part III.C.2, ante). What uses the lease permitted is an
unresolved, disputed legal issue with no clear answer.
Other than the unjustified assumption that the breach of the lease controversy
proved malice, the record is devoid of any evidence that Martin (or Reynolds) knew her
15
statements regarding the Jelly’s lease were false, or that she acted with reckless
indifference to the truth or falsity of her statements.5
D. Additional Discovery
Appellants lastly contend that the trial court improperly denied their request to
depose Reynolds based on the mistaken belief that appellants had not requested
permission for the deposition in their opposition papers. From this appellants argue the
trial court failed to exercise its discretion on their discovery request. They believe the
need to depose Reynolds is “plain.” We disagree.
The need to depose Reynolds is not plain, and neither was appellants’ request to
depose her. Appellants’ opposition points and authorities included a section entitled
“Plaintiff [sic] Should Be Allowed to Conduct Discovery.” In that section, they asked for
permission to depose Martin, not Reynolds. Buried in a footnote in a different section of
the brief is a conditional request to depose Reynolds, with no detailed explanation as to
why her deposition was necessary on the defamation claim.
Under the circumstances, the trial court was justified in concluding appellants had
not properly sought permission to depose Reynolds. In any case, appellants’ request was
patently insufficient to demonstrate good cause to depose Reynolds, let alone an abuse of
discretion to deny them this discovery.
5
Appellants request judicial notice, for the first time in this court, of a document
entitled “Port of San Francisco Tenant in Good Standing Policy.” According to
appellants, this two-page document was posted on the Port’s website. There is no
statement as to when this policy was in effect. The purported relevance of this document
is that it refutes respondents’ claim that the Port officials’ statements were true. As we
do not decide that issue in this appeal, it follows that the document is not relevant to this
appeal. (See Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063
[Supreme Court declines to notice material that has no bearing on legal question at hand],
overruled on other grounds in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.) In
addition, the only legal basis for noticing this document advanced by appellants is
Evidence Code section 452, subdivision (b): “Regulations and legislative enactments
issued by or under the authority of the United States or any public entity in the United
States.” Appellants fail to show this policy is a regulation or legislative enactment. For
all these reasons, we deny the request for judicial notice.
16
Section 425.16, subdivision (g), provides for a stay of discovery upon the filing of
an anti-SLAPP motion to strike. The court may lift the stay for limited discovery on
noticed motion and for good cause shown. (Ibid.) The default rule, therefore, is that
absent a showing of good cause, discovery is closed until the special motion is decided
and the litigation allowed to proceed, if at all. (Paterno v. Superior Court (2008) 163
Cal.App.4th 1342, 1348-1349; see also Price v. Stossel (C.D.Cal. 2008) 590 F.Supp.2d
1262, 1266-1267.)
Appellants filed no formal motion for discovery. Assuming the request to depose
Reynolds in the opposition points and authorities satisfied the requirement for a noticed
motion, appellants vague desire to question Reynolds on her knowledge of the use of the
leased premises did not demonstrate good cause to lift the stay of discovery. It is not an
abuse of discretion to deny discovery requested without an adequate explanation of why
the discovery is needed and what additional facts the moving party expects to discover.
(1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 593-594.)
IV.
DISPOSITION
The judgment is affirmed.
17
_________________________
RUVOLO, P. J.
We concur:
_________________________
RIVERA, J.
_________________________
HUMES, J.
18