Filed 3/17/21 Dog & Rooster v. Green CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
DOG & ROOSTER, INC., D077102
Plaintiff and Respondent,
v. (Super. Ct. No. 37-2019-
00031852-CU-DF-CTL)
TODD GREEN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
John S. Meyer, Judge. Vacated in part and remanded with directions.
Procopio, Cory, Hargreaves & Savitch, Mindy M. Morton and Jacob
Poorman for Defendant and Appellant.
Law Office of Michael A. Alfred and Michael A. Alfred for Plaintiff and
Respondent.
Defendant Todd Green appeals from an order of the trial court denying
in part his special motion to strike the complaint of plaintiff Dog & Rooster,
Inc. (D&R). The court ruled that two of the causes of action were a “SLAPP”
and struck them pursuant to Code of Civil Procedure section 425.16 (at times,
anti-SLAPP statute; further unidentified statutory references are to the Code
of Civil Procedure).1 As relevant to the appeal, the court also denied Green’s
anti-SLAPP motion as to the second, third, fifth, and sixth causes of action
for, according to the complaint, “libel,” “trade libel,” “negligent interference
with prospective economic advantage,” and “injunctive relief.” The trial court
erred.
The trial court ruled that Green met his initial burden to establish that
the claims in the complaint arose from activity protected by the anti-SLAPP
statute, and D&R does not argue otherwise on appeal. Thus, all that is
before the court in this appeal is whether—with regard to each of the four
causes of action not stricken by the trial court—D&R met its responsive
burden of stating a legally sufficient claim and making a prima facie factual
showing sufficient to sustain a favorable judgment.
As we explain, for purposes of establishing libel, D&R did not plead or
present evidence of negligence; for purposes of establishing trade libel, D&R
did not present evidence of malice; and for purposes of negligent interference
with prospective economic advantage, D&R did not present evidence that, at
the time of the allegedly defamatory statement(s), Green knew (or should
have known) of any specific economic relationship between D&R and an
identified third party. As to these three causes of action, therefore, D&R did
not meet its responsive burden in the anti-SLAPP proceedings, and the trial
court erred in concluding otherwise.
1 “ ‘ “SLAPP” is an acronym for “strategic lawsuit against public
participation.” ’ ” (Sweetwater Union High School Dist. v. Gilbane Building
Co. (2019) 6 Cal.5th 931, 938, fn. 5 (Sweetwater Union).) The anti-SLAPP
statute, section 425.16, sets forth the standards and the procedure for
striking a cause of action in a SLAPP. (Sweetwater Union, at p. 940.)
2
Finally, because injunctive relief is a remedy—not a cause of action or
claim or otherwise a protected activity under the anti-SLAPP statute—the
allegations related to injunctive relief are not subject to being stricken under
the anti-SLAPP statute. However, on appeal, D&R agreed with the trial
court’s ruling that injunctive relief is “purely a remedy” and, on that basis,
any “issue [regarding the allegations for injunctive relief is] off the table.”
Accordingly, we will vacate that portion of the order denying Green’s
anti-SLAPP motion and direct the trial court to enter orders (1) granting
Green’s anti-SLAPP motion as to the second, third, and fifth causes of action
for libel, trade libel, and negligent interference with prospective economic
advantage, respectively, and (2) to dismiss the action.
I. FACTUAL AND PROCEDURAL BACKGROUND2
D&R is, and at all relevant times was, a web design company, doing
business in San Diego since approximately 2001. According to its principal,
prior to entering into a web design contract with Green, D&R was “highly
ranked on Google search” and enjoyed “a perfect reputation.”
In June 2017, Green, who was in the process of launching a new
business, WCC Tour Company LLC dba West Coast Cannabis Tours (WCC),
hired D&R to design a logo and the website for the business.3 In this regard,
2 Given the procedural posture of the case in the trial court, which we
describe in the text, post, our statement of facts is necessarily limited to the
allegations in the complaint and the evidence submitted in support of and in
opposition to the anti-SLAPP motion. We have disregarded all factual
statements in the parties’ appellate briefs that are presented without record
references (Delta Stewardship Council Cases (2020) 48 Cal.App.5th 1014,
1079; Cal. Rules of Court, rule 8.204(a)(1)(C)); and there are many.
3 WCC used a dba of “West Coast Cannabis Tours.” Although both
parties tell us, without a record reference, that WCC was “a cannabis touring
3
on June 14, 2017, WCC, through Green as its chief executive officer, entered
into a “Service & Development Agreement” with D&R (“Agreement”). The
Agreement consists of four single-spaced typewritten pages of terms and
conditions, followed by four typewritten pages of 11 separately described
phases or stages of “Service Detail.”
Green testified: “I had a bad experience with the service and product
produced by D&R,” and “[b]ecause of my bad experiences, I wanted to warn
other consumers about [D&R’s] deceptive practices and bad work product.”
By the end of 2017, Green was convinced that he “would not be able to get a
working website from D&R.” Thus, beginning in late 2017 and continuing
through at least November 2018, Green posted a number of reviews of D&R,
including what D&R describes as “multiple untruthful comments on multiple
social media platforms” such as “Yelp.com” and “the Better Business Bureau
website.”
Green acknowledges posting many of the reviews and one-star ratings
that D&R alleges in its complaint. He contends that the statements he
posted were either “substantially true” (if asserted as a statement of fact) or
his “opinion” (if not asserted as a statement of fact).
On appeal, the parties discuss, and dispute the effect of, one post in
particular—i.e., a November 30, 2018 “Complaint” regarding D&R, which
Green acknowledges having posted on the Better Business Bureau’s
website.4 In its complaint, D&R alleges as follows regarding this post:
business,” neither party describes what a cannabis touring business does,
and Green does not explain what WCC did or was intended to do.
4 By limiting our presentation to only one of the alleged instances of a
defamatory statement, we do not discount or minimize the other alleged
instances. However, since an understanding of each alleged defamatory
4
[D&R] is informed and believes and thereon alleges that on
or about November 30, 2018, Green posted a negative
review on the Better Business Bureau website claiming,
among other things, that the errors or problems with
Green’s website were due to [D&R’s] ‘incorrect and sloppy
code’; [D&R] ‘didn’t know what they were doing’ with
respect to enabling a hotel booking function on Green’s
website; [D&R] intentionally disclosed and announced
Green’s disability to its employees with[out] Green’s
consent.”
Green submitted a copy of this post as exhibit No. 4 in support of his
anti-SLAPP motion, and it provides in full:
“I had purchased a full website build from Dog and Rooster
to try to start a company. After many months and
limitation issues that Dog and Rooster ran into that they
were not previously aware due to our industry, we ended
up not getting the product we were promised. Tons of
incorrect and sloppy code that slowed the site down and
had elements like buttons etc hidden on the page (errors).
I paid the entire amount of the contract by a certain period,
and based on the contract, the site was supposed to be ours
at that point, but because they weren’t quite done yet they
decided to remove the site and try to make me sign another
contract just because I adjusted some spelling errors.
They even put other companies files on our backend of our
website, one of them was a schools information and invoice.
We were supposed to be able to book hotels on our site, that
never happened because they didn’t know what they were
doing. And to top it off, I decided to put 1 review on yelp
and so the owner of Dog and Rooster (Jack ****), decided to
put multiple FAKE reviews on my brand new business that
had zero starts because we were literally developing it
through this first website build. So needless to say my
statement is not necessary given our disposition of the appeal (see
Discussion, pt. II., post), we focus on the November 2018 Better Business
Bureau post as an example of what both parties acknowledge is a post that
Green made within one year prior to the filing of D&R’s complaint.
5
company was at 1 star right off the bat. I ended up
disputing the reviews with google and yelp and then
ultimately discussing with Dog and Rooster to remove the
reviews, however I also had to remove my honest review.
I also mentioned to the owner to put things in writing for
me because I have ADD and he had a very very strong
accent so it was hard to grasp everything he says.
Well later he decided to send an email to his employees
that ‘because I have ADD I don’t understand contracts’.
No strategy or sales funnel was even designed. This owner
is 100% in breach of contract, but to pay attorney fees in
litigation to get my $8500 back was advised against by the
attorneys because it will cost more than that to litigate[.]”
(Sic.)
In June 2019, D&R filed the underlying action against Green. Based
on the parties’ relationship from and after the June 2017 Agreement, D&R
alleged the following six “causes of action” against Green: “breach of
contract”; “libel”; “trade libel”; “intentional interference with prospective
economic advantage”; “negligent interference with prospective economic
advantage”; and “injunctive relief.”
Green responded by filing an answer and an anti-SLAPP motion to
strike the complaint. In support of the motion, he submitted a memorandum
of points and authorities and two declarations (one with exhibits).
D&R opposed the motion by filing a memorandum of points and
authorities and three declarations (each with exhibits).
Green replied to the opposition by filing a memorandum of points and
authorities and 33 objections to the evidence D&R had submitted.
In October 2019, the court entertained oral argument on Green’s
anti-SLAPP motion.5 By written order, the court granted in part and denied
5 The proceedings were not reported. (See fn. 6, post.)
6
in part the motion—striking the causes of action for breach of contract and
intentional interference with prospective economic advantage, and allowing
the causes of action for libel, trade libel, negligent interference with
prospective economic advantage, and injunctive relief to proceed (anti-SLAPP
Order). The trial court did not rule on Green’s evidentiary objections.
Green timely appealed from the anti-SLAPP Order.6
II. DISCUSSION
On appeal, Green argues that the trial court erred in denying his
anti-SLAPP motion to strike the causes of action for libel, trade libel, and
negligent interference with prospective economic advantage. In addition, he
contends the court erred in not striking the allegations seeking injunctive
relief, because injunctive relief is a remedy, not a cause of action. As we
explain, we agree that each of the three causes of action should be stricken,
because D&R did not meet its responsive burden under the anti-SLAPP
statute to establish a prima facie factual showing sufficient to sustain a
favorable judgment as to any of those claims. As we further explain, since
6 In designating his record on appeal, for purposes of a record of the oral
proceedings on the motion, Green chose to proceed by way of a settled
statement. (Cal. Rules of Court, rule 8.137.) In response to Green’s timely
proposed settled statement, the trial court ruled in full: “Oral argument at
the motion hearing is not evidence. The tentative ruling adopted by the
[anti-SLAPP O]rder is an appropriate settled statement.” (Capitalization
omitted.)
A settled statement is “a summary of the superior court proceedings
approved by the superior court.” (Cal. Rules of Court, rule 8.137(a).)
Contrary to the court’s ruling here, the purpose of a settled statement is not
to provide evidence for the appellate record. Its purpose is “ ‘to ensure that
the record transmitted to the reviewing court preserves and conforms to the
proceedings actually undertaken in the trial court.’ ” (People v. Virgil (2011)
51 Cal.4th 1210, 1266.)
7
(1) all of the causes of action will be stricken after a proper application of the
anti-SLAPP statute, and (2) at oral argument, counsel for D&R told us that,
based on the trial court’s ruling, “the issue [regarding the allegations for
injunctive relief is] off the table,” nothing remains of D&R’s complaint; and,
for this reason, the action should be dismissed.
Section 425.16, subdivision (b)(1) provides in full: “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.”
In applying this statute, a court generally is required to engage in a
two-step process. “ ‘First, the defendant must establish that the challenged
claim arises from activity protected by section 425.16.’ ” (Sweetwater Union,
supra, 6 Cal.5th at p. 940.) “ ‘If the defendant makes the required showing,
the burden shifts to the plaintiff to demonstrate the merit of the claim by
establishing a probability of success.’ ” (Ibid.) “ ‘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.’ ” (Oasis West Realty, LLC v.
Goldman (2011) 51 Cal.4th 811, 820 (Oasis West).)
We review de novo the grant of an anti-SLAPP motion. (Sweetwater
Union, supra, 6 Cal.5th at p. 940.)
A. Prong One—Whether D&R’s Claims Arise from Protected Activity
For purposes of the threshold determination of whether the challenged
cause of action is one arising from “protected activity,” a person’s “protected
8
activity” is “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.” (§ 425.16, subd. (b)(1).) The
anti-SLAPP statute defines subdivision (b)(1)’s “ ‘act in furtherance of a
person’s right of petition’ ” to include “any written or oral statement or
writing made in . . . a public forum in connection with an issue of public
interest.” (§ 425.16, subd. (e)(3).)
The trial court ruled that Green met his initial burden of establishing
that all the claims in the complaint arose from activity protected by the
anti-SLAPP statute. On appeal D&R does not challenge this ruling.7
Accordingly, we express no opinion on the prong one issue and now consider
the prong two issues raised by the parties on appeal.
B. Prong Two—Probability of D&R’s Success
In determining whether a plaintiff meets its responsive burden under
the second prong of the test under the anti-SLAPP statute, “the court shall
consider the pleadings, and supporting and opposing affidavits stating the
facts upon which the liability or defense is based.” (§ 425.16, subd. (b)(2); see
Park v. Board of Trustees of California State University (2017) 2 Cal.5th
1057, 1067 [in an anti-SLAPP appeal, “we may consider affidavits concerning
the facts upon which liability is based”].) In doing so, “ ‘[t]he court does not
7 D&R’s brief on appeal has a point heading entitled, “Green’s false BBB
review is not protected speech.” (Bolding omitted.) However, in the Table of
Contents, the point heading is entitled, “False BBB Review Is Stated With
Specificity” (bolding omitted); and, the one-page argument discusses only
alleged falsities in Green’s posts without any mention of protected speech or
the anti-SLAPP statute. More to the point, under a different point heading
entitled, “Trial court ruled properly on the pleadings” (bolding omitted), D&R
expressly argues “that the court did not commit errors with its ruling.”
9
weigh evidence or resolve conflicting factual claims. Its inquiry is limited to
whether the plaintiff has stated a legally sufficient claim and made a prima
facie factual showing sufficient to sustain a favorable judgment. It accepts
the plaintiff’s evidence as true, and evaluates the defendant’s showing only to
determine if it defeats the plaintiff’s claim as a matter of law.’ ” (Sweetwater
Union, supra, 6 Cal.5th at p. 940, quoting Baral v. Schnitt (2016) 1 Cal.5th
376, 384-385 (Baral); accord, Oasis West, supra, 51 Cal.4th at p. 820; Soukup
v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3 (Soukup).)
Courts have described this procedure as a “motion for summary
judgment in ‘reverse.’ Rather than requiring the defendant to defeat the
plaintiff’s pleading by showing it is legally or factually meritless, the motion
requires the plaintiff to demonstrate that he possesses a legally sufficient
claim which is ‘substantiated,’ that is, supported by competent, admissible
evidence.” (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 719
(College Hospital); accord, Baral, supra, 1 Cal.5th at p. 384 [“ ‘summary-
judgment-like-procedure’ ”]; Tichinin v. City of Morgan Hill (2009) 177
Cal.App.4th 1049, 1062 [“a standard ‘similar to that employed in determining
nonsuit, directed verdict or summary judgment motions’ ”]; Yu v. Signet
Bank/Virginia (2002) 103 Cal.App.4th 298, 317 [“plaintiff’s burden as to the
second prong of the anti-SLAPP test is akin to that of a party opposing a
motion for summary judgment”], disapproved on other grounds in Newport
Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th
637, 644-645.) Consistent with this summary-judgment-like procedure, the
court “must draw all reasonable inferences from the evidence in favor of [the
party opposing the anti-SLAPP motion].” (Lee v. Kim (2019) 41 Cal.App.5th
705, 720.)
10
Despite the authority that says the plaintiff’s evidence in opposition to
the anti-SLAPP motion must be admissible at trial (e.g., College Hospital,
supra, 8 Cal.4th at p. 719; Sweetwater Union, supra, 6 Cal.5th at p. 946
[collecting cases]), “evidence may be considered at the anti-SLAPP motion
stage if it is reasonably possible the evidence set out in supporting affidavits,
declarations or their equivalent will be admissible at trial” (Sweetwater
Union, at p. 947, italics added). “Conversely, if the evidence relied upon
cannot be admitted at trial, because it is categorically barred or undisputed
factual circumstances show inadmissibility, the court may not consider it in
the face of an objection.” (Id. at p. 949, second italics added.)
Throughout his appellate briefing, Green suggests that specified
evidence submitted by D&R is inadmissible. However, “ ‘ “[w]here the court,
through inadvertence or neglect, neither rules nor reserves its ruling [on an
evidentiary objection,] . . . the party who objected must make some effort to
have the court actually rule. If the point is not pressed and is forgotten, [the
objecting party] may be deemed to have waived or abandoned [or forfeited] it,
just as if he had failed to make the objection in the first place.” ’ ” (People v.
Braxton (2004) 34 Cal.4th 798, 813.) More specifically, in an anti-SLAPP
appeal, our Supreme Court has directed that, where the trial court does not
rule on evidentiary objections and the record does not reveal that the
objecting party pressed for a ruling, the evidentiary “objections are therefore
deemed forfeited and we consider [the potentially inadmissible] declarations
in their entirety.” (Flatley v. Mauro (2006) 39 Cal.4th 299, 306, fn. 4
(Flatley); accord, Soukup, supra, 39 Cal.4th at p. 291, fn. 17 [evidentiary
objections are waived if no ruling is obtained at the hearing on an anti-
SLAPP motion].)
In the present case, the trial court failed to rule on Green’s evidentiary
11
objections; and the court’s failure to provide the requested settled statement
leaves us with a record in which Green did not pursue a ruling. Accordingly,
Green forfeited appellate review of all of his evidentiary objections (Flatley,
supra, 39 Cal.4th at p. 306, fn. 4; Soukup, supra, 39 Cal.4th at p. 291, fn. 17);
and, for this reason, all of the evidence in the record on appeal is properly
before us (see Cal. Law Revision Com. com., 29B pt. 1A West’s Ann. Evid.
Code (2011 ed.) foll. § 140 [definition of “evidence”], p. 27 [“Thus, when
[inadmissible evidence] is admitted without objection, . . . it constitutes
evidence that may be considered by the trier of fact.”]).
Consistent with his burden on appeal, Green argues that D&R did not
meet its responsive prong two burden in the trial court as to each of the
causes of action. We necessarily discuss each cause of action separately.
1. Libel
Defamation is an injury to reputation, and the elements of a claim for
defamation are: (1) A publication that is (2) false, (3) defamatory,
(4) unprivileged, and (5) has a natural tendency to injure or causes special
damage. (Taus v. Loftus (2007) 40 Cal.4th 683, 720; see 5 Witkin, Summary
of Cal. Law (11th ed. 2017) Torts § 623, p. 861.) Civil Code section 44
provides that defamation can be of two types, libel or slander. As applicable
here, libel is “a false and unprivileged publication by writing, . . . 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.)
On appeal, Green argues that proof of libel requires, at a minimum,
evidence that the defendant failed to exercise reasonable care in determining
the truth or falsity of the statement(s) at issue. He further argues that D&R
neither alleged negligence in its complaint nor presented evidence of
12
negligence in its opposition to Green’s anti-SLAPP motion. We agree with
both of Green’s arguments.
In Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, the United States
Supreme Court held that the states could define for themselves the standard
of liability for defamation of private individuals, so long as the states did not
impose liability without fault. (Id. at p. 347.) In this regard, our state
Supreme Court ruled that negligence was the standard in California: “We
decline to diverge from the near unanimous authority that a private person
need prove only negligence (rather than malice) to recover for defamation.”8
(Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 742 (Brown); accord,
Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387, 398
[to prove libel, a private figure must prove the defendant, at a minimum,
negligently made the statements]; Khawar v. Globe Internat., Inc. (1998) 19
Cal.4th 254, 274 [“[T]his court has adopted a negligence standard for private
figure plaintiffs seeking compensatory damages in defamation actions.”].)
Applying this ruling in Carney v. Santa Cruz Women Against Rape
(1990) 221 Cal.App.3d 1009 (Carney), for example, the appellate court
reversed a libel judgment in favor of the private party plaintiff, because the
trial court failed to instruct the jury to determine “whether [the defendant]
acted with reasonable care in checking on the truth or falsity of the
information before publishing it in its newsletter.” (Id. at p. 1016.)
Consistently, CACI No. 1702 provides in part that, to establish a claim of
8 This is in contrast to a public official or public figure, who, in order to
recover for defamation, must establish the defendant made the allegedly
defamatory statement with “ ‘actual malice’—that is, with knowledge that it
was false or with reckless disregard of whether it was false or not.” (New
York Times Co. v. Sullivan (1964) 376 U.S. 254, 279-280.)
13
defamation per se, a private party plaintiff (like D&R here) “must prove” that
the defendant “failed to use reasonable care to determine the truth or falsity
of the statement(s).”
In its complaint in the present case, D&R did not allege that Green
failed to use reasonable care to determine the truth or falsity of the
statements D&R alleged to be libelous. In its opposition to Green’s
anti-SLAPP motion, D&R neither argued that Green was negligent nor
presented evidence which, if accepted as true, would support a favorable
judgment under Carney, supra, 221 Cal.App.3d at page 1016.
On appeal, D&R does not deny that, in its opposition to the anti-SLAPP
motion, it did not present facts that would support a finding that Green failed
to use reasonable care to determine the truth or falsity of the allegedly
defamatory statements. Instead, D&R relies on the following statement and
finding of the trial court in the anti-SLAPP Order: “There is evidence to
support actual malice. According to [D&R’s expert web designer and
programmer], someone has tampered with the website.”9 We are not
persuaded because, very simply, evidence of the defendant’s malice is not
evidence of the defendant’s negligence.
In Carney, supra, 221 Cal.App.3d 1009, the plaintiff alleged that the
defendant libeled him by publishing in a newsletter that he had assaulted
and attempted to rape a specified victim. (Id. at p. 1013.) At trial, the court
9 The trial court made this ruling in its application of the evidence D&R
submitted to support the cause of action for trade libel, not libel. We will
assume without deciding that, for both torts, the standard for establishing
malice is the same. As we explain at part II.B.2., post, D&R also relies on
this statement and finding with regard to its evidence in support of trade
libel.
14
instructed the jury that the plaintiff was required to prove the defendant
“acted with ‘actual malice,’ ” further instructing in part that “ ‘[t]he defendant
acted with malice if it acted with hatred or ill will towards the plaintiff[.]’ ”
(Id. at p. 1016.) As we explained, ante, this statement of the law is wrong;
“the jury should have considered whether [the defendant] acted with
reasonable care in checking on the truth or falsity of the information before
publishing it in its newsletter.” (Ibid., citing Brown, supra, 48 Cal.3d at
p. 749; Rest.2d Torts, § 580B, pp. 227-228.) On appeal, the plaintiff argued
that such an error was harmless because “the instruction [on malice]
required proof of a higher degree of fault than negligence.” (Carney, at
p. 1017.) Rejecting this argument, the court explained: “[T]he portion of the
instruction referring to ‘hatred or ill will’ is not necessarily a higher degree of
fault than negligence. That a libel defendant acts with hatred or ill will does
not automatically establish that the defendant fails to exercise reasonable
care in determining whether a communication is untrue.” (Ibid.)
Accordingly, even if we assume without deciding that the record contains
evidence to support the trial court’s finding that Green acted with malice,
D&R nonetheless did not present any evidence to support a finding that
Green failed to exercise reasonable care in determining the truth or falsity of
the allegedly defamatory statements.
For these reasons, with regard to its cause of action for libel, D&R did
not meet its prong two responsive burden to Green’s anti-SLAPP motion; and
the trial court erred in ruling to the contrary.
2. Trade Libel
“Trade libel is an intentional disparagement of the quality of services or
product of a business that results in pecuniary damage to the plaintiff.” (J-M
15
Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87,
97 (J-M Manufacturing).)
On appeal, Green argues that, to prove trade libel, “the owner or
distributor of the product is required to produce clear and convincing
evidence the defendant acted with actual malice.” (Melaleuca, Inc. v. Clark
(1998) 66 Cal.App.4th 1344, 1350.) Green further argues that, in this
context, “actual malice” requires proof that the defendant made the
defamatory statement “with knowledge it was false or with reckless disregard
for whether it was true or false.” (J-M Manufacturing, supra, 247
Cal.App.4th at p. 97.) Consistently, CACI No. 1731 includes as an essential
factual element of a claim for trade libel that the defendant either “knew that
the statement was untrue” or “acted with reckless disregard of the truth or
falsity of the statement.” (See also Rest.2d Torts, §§ 623A, 626, pp. 334-342,
345-347.) These authorities support Green’s position on appeal.
In its complaint, in a paragraph seeking punitive damages, D&R
alleged that Green published the allegedly libelous statements “with malice
and/or oppression and/or fraud in that [he] knew said publication would
damage [D&R’s] reputation[.]” Even if we assume that such an allegation
would suffice for the “actual malice” required to state a claim for trade
libel,10 in its opposition to Green’s anti-SLAPP motion, D&R neither argued
nor presented evidence which, if accepted as true, would support a finding
that Green published his statements with knowledge they were false or with
reckless disregard for their truth or falsity.
On appeal, D&R does not refer to any argument or showing that it had
made in the trial court as to actual malice; and our independent review of the
10 We make no such ruling.
16
record confirms that the word “malice” does not appear in the more than 170
pages of argument and evidence D&R submitted in opposition to Green’s
anti-SLAPP motion. Instead, consistent with its argument as to libel (see
pt. II.B.1., ante), D&R relies on the following statement and finding in the
anti-SLAPP Order: “There is evidence to support actual malice. According to
[D&R’s expert web designer and programmer], someone has tampered with
the website.”
Tampering with the website, however, is not evidence (or an inference
from evidence) that Green made each alleged statement “with knowledge it
was false or with reckless disregard for whether it was true or false,” as
required by substantive California law. (J-M Manufacturing, supra, 247
Cal.App.4th at p. 97.) In addition, even once we accept, as we must, the truth
of the expert witness’s above-quoted declaration testimony, the evidence
establishes only that “ ‘someone other than [D&R] added more than 30
useless plug-ins to Green’s website.’ ” (Italics added.) This evidence does not
support a finding that Green was responsible for having added the plug-ins.
For these reasons, with regard to its cause of action for trade libel,
D&R did not meet its prong two responsive burden to Green’s anti-SLAPP
motion; and the trial court erred in ruling to the contrary.
17
3. Negligent Interference with Prospective Economic Advantage11
The elements of a cause of action for negligent interference with
prospective economic advantage are: “(1) the existence of a valid contractual
relationship or other economic relationship between the plaintiff and a third
party containing the probability of future economic benefit to the plaintiff;
(2) the defendant’s knowledge (actual or construed) of the relationship; (3) the
defendant’s knowledge (actual or construed) that the relationship would be
disrupted if the defendant failed to act with reasonable care; (4) the
defendant’s failure to act with reasonable care; (5) actual disruption of the
relationship; and (6) resulting economic harm.” (Nelson v. Tucker Ellis, LLP
(2020) 48 Cal.App.5th 827, 844, fn. 5, citing Venhaus v. Shultz (2007) 155
Cal.App.4th 1072, 1077-1078 [applying CACI No. 2204].)
In his opening brief on appeal, Green argues that, as part of its prong
two showing, D&R failed to proffer evidence of at least the following two
elements of the cause of action: (1) The existence of an economic relationship
between D&R and a third party that contained the probability of future
economic benefit to D&R and, therefore, (2) Green’s knowledge of such a
relationship. The record on appeal supports Green’s argument, and as we
explained at footnote 11, ante, D&R does not argue otherwise.
11 In the trial court D&R did not oppose, and on appeal D&R does not
oppose, that part of Green’s anti-SLAPP motion directed to its cause of action
for negligent interference with prospective economic advantage. We do not
consider this omission an admission of error. As the appellant, Green still
has the burden of establishing reversible error, regardless of the participation
by the respondent, D&R. (See County of San Diego Dept. of Child Support
Services v. C.P. (2019) 34 Cal.App.5th 1, 7, fn. 7 [no respondent’s brief filed on
appeal].)
18
Thus, with regard to its cause of action for negligent interference with
prospective economic advantage, D&R did not meet its prong two responsive
burden to Green’s anti-SLAPP motion; and the trial court erred in failing to
rule accordingly.
4. Injunctive Relief
In its complaint, D&R alleges a “Sixth Cause of Action” for “Injunctive
Relief,” in which D&R “seeks an injunction against [Green] to prevent [his]
continual posting of online reviews containing false statements.” (Bolding
and some capitalization and underscoring omitted.) In this regard, the trial
court properly ruled that an injunction is an equitable remedy, not a cause of
action. (Shell Oil Co. v. Richter (1942) 52 Cal.App.2d 164, 168 [“Injunctive
relief is a remedy and not, in itself, a cause of action, and a cause of action
must exist before injunctive relief may be granted.”]; Venice Coalition to
Preserve Unique Community Character v. City of Los Angeles (2019) 31
Cal.App.5th 42, 54 [“An injunction is a remedy, not a cause of action.”]; Wong
v. Jing (2010) 189 Cal.App.4th 1354, 1360, fn. 2 (Wong) [same; anti-SLAPP
appeal]; see generally 6 Witkin, Cal. Procedure (5th ed. 2008) Provisional
Remedies, § 274, pp. 217-218.)
Because “[t]he anti-SLAPP statute applies only to ‘causes of action’ ”12
(Wong, supra, 189 Cal.App.4th at p. 1360, fn. 2 [citing § 425.16, subd. (b)(1)]),
12 “[T]he term ‘cause of action’ . . . has various meanings”—e.g., “distinct
claims for relief as pleaded in a complaint” or “a legal claim possessed by an
injured person, without reference to any pleading.” (Baral, supra, 1 Cal.5th
at p. 381 [anti-SLAPP appeal].) “[D]espite the imprecision that may result
from the various connotations of the term ‘cause of action,’ its meaning is
generally evident in context.” (Id. at p. 382, fn. 2.) “[T]he Legislature used
‘cause of action’ in a particular way in section 425.16[, subdivision ](b)(1),
targeting only claims that are based on the conduct protected by the
statute. . . . While an anti-SLAPP motion may challenge any claim for relief
19
Green’s anti-SLAPP motion does not apply to D&R’s request for an equitable
remedy. For this reason, the trial court properly denied Green’s anti-SLAPP
motion to “Injunctive Relief.”
At oral argument, counsel for D&R agreed with the trial court’s ruling
that injunctive relief is “purely a remedy” and, on that basis, told the panel
that any “issue [regarding the allegations for injunctive relief is] off the
table.” Thus, with all issues as to injunctive relief “off the table” and all
causes of action subject to being stricken under the anti-SLAPP statute, the
action should be dismissed.
III. DISPOSITION
That portion of the October 2019 anti-SLAPP Order denying Green’s
anti-SLAPP motion is vacated. Upon issuance of the remittitur, the trial
court is directed to enter an order (1) granting Green’s anti-SLAPP motion as
to the second, third, and fifth causes of action for libel, trade libel, and
negligent interference with prospective economic advantage, respectively,
and (2) dismissing the action.
Green is entitled to his costs on appeal. (Cal. Rules of Court,
rule 8.278(a)(2).)
founded on allegations of protected activity, it does not reach claims based on
unprotected activity.” (Id. at p. 382.) “To avoid confusion, we refer to the
proper subject of a special motion to strike as a ‘claim[.]’ ” (Ibid.; see
§ 425.16, subd. (b)(1) [a plaintiff must establish a probability of prevailing on
any “claim” that arises from protected activity].)
20
IRION, J.
WE CONCUR:
McCONNELL, P. J.
AARON, J.
21