Lincoln v. Pekary CA1/1

Filed 7/20/22 Lincoln v. Pekary CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 ONE

WEBSTER LINCOLN et al.,
Plaintiffs and Respondents, A162427

v. (San Mateo County
ISAIAH CHRISTOPHER PEKARY, Super. Ct. No.
20CIV05420)
Defendant and Appellant.

After defendant Isaiah Christopher Pekary (Pekary) made a number of
statements about plaintiffs Webster Lincoln, his mother Niambi Lincoln and
his grandmother Katherine Loudd on social media in connection with
Webster’s campaign for city council, all three sued him for defamation and
intentional infliction of emotional distress. Pekary made a special motion to
strike (an “anti-SLAPP” motion”) which the trial court granted as to the
emotional distress claim but denied as to the defamation claim. Pekary
appeals to the extent his motion was denied. We affirm.
BACKGROUND
Webster Lincoln’s mother and grandmother, Niambi and Katherine,
both served on the board of the Palo Alto Park Mutual Water Company.1

We refer to the respondents individually by their first names for
1

clarity, and collectively as the “Lincoln family members.”

1
Webster, employed as a data scientist for Genentech, has never served on the
board.
During Webster’s campaign for East Palo Alto City Council in 2020,
Pekary made two social media postings about Webster and the Lincoln family
members. One was made on the Nextdoor social media site and said: “Don’t
Vote Webster Lincoln for EPA City Council. . . . Whoever you vote for city
council, don’t vote for Webster Lincoln. His mother Niambi Lincoln and other
family members have been running the Palo Alto Park Mutual Water
Company, which is widely known to be a corrupt organization that has
preyed upon many people and stolen community funds for many years. Don’t
let this family get more power to hurt this community.” (Boldface omitted.)
The post included a link to an online newspaper article about the water
company and the Lincoln family members on the board, entitled “Troubled
Water[:] Local water company faces allegations of election fraud and company
mismanagement.” The article mentions Niambi and Katherine by name.
The other posting was made on Facebook and was nearly identical (it did not
include the first sentence of the Nextdoor post nor did it include the media
link).
After the Lincoln family members demanded a retraction, Pekary made
two postings on Facebook regarding his statements about Webster. In the
posts, Pekary stated “Recently I made a post stating why I would not vote for
Webster Lincoln for East Palo Alto City Council. Upon further reflection, I
realize now that my post was not fair or loving. I don’t personally know
Webster Lincoln and I should not have associated him with the actions of the
water company. It is my understanding that he is not on the board of the
company, nor employed there. I sincerely apologize and, I hope Webster
Lincoln that you can accept my apology.” In a second post, Pekary stated “it

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is my understanding that [Webster] is not on the board of the company, nor
employed there and so he is not directly responsible for the actions. My
intentions were to express why I was weary [sic] of Webster being elected due
to claims of his families[’] mismanagement of the water company. I should
have been more mindful of my wording. For that, I apologize.” He added,
however, that “my views on the water company still stand.”
After the Lincoln family members again demanded a retraction, Pekary
removed the postings and published a retraction on both sites which stated:
“I retract my previous statements made about Palo Alto Mutual Water
Company.”
DISCUSSION
Legal Background
“ ‘ “The Legislature enacted [Code of Civil procedure] section 425.16 to
prevent and deter ‘lawsuits [referred to as SLAPP’s] brought primarily to
chill the valid exercise of the constitutional rights of freedom of speech and
petition for the redress of grievances.’ ([Code Civ. Proc.,] § 425.16, subd. (a).)
Because these meritless lawsuits seek to deplete ‘the defendant’s energy’ and
drain ‘his or her resources’ [citation], the Legislature sought ‘ “to prevent
SLAPPs by ending them early and without great cost to the SLAPP target” ’
[citation]. [Code of Civil Procedure] [s]ection 425.16 therefore establishes a
procedure where the trial court evaluates the merits of the lawsuit using a
summary-judgment-like procedure at an early stage of the litigation.” ’ ”
(Central Valley Hospitalists v. Dignity Health (2018) 19 Cal.App.5th 203,
216.) “ ‘[Code of Civil Procedure] subdivision (a) of section 425.16 expressly
mandates, the section “shall be construed broadly.” ’ ” (Ibid.) “ ‘[Code of Civil
Procedure] [s]ubdivision (b)(1) of section 425.16 provides that “[a] cause of
action against a person arising from any act of that person in furtherance of

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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 of Civil Procedure] [s]ubdivision (e) of section
425.16 elaborates the four types of acts within the ambit of a SLAPP. . . .’ ”
(Central Valley, at p. 216.)
Code of Civil Procedure section 425.16, subdivision (e) provides “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.”
Thus, a two-step process is used in determining whether an action is a
SLAPP. “Initially, the moving defendant bears the burden of establishing
that the challenged allegations or claims ‘aris[e] from’ protected activity in
which the defendant has engaged. [Citations.] If the defendant carries its
burden, the plaintiff must then demonstrate its claims have at least ‘minimal
merit.’ ” (Park v. Board of Trustees of California State University (2017)
2 Cal.5th 1057, 1061 (Park).) “Only a cause of action that satisfies both

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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, 89,
italics omitted.)
We review the grant or denial of an anti-SLAPP motion de novo. (Park,
supra, 2 Cal.5th at p. 1067.)
The Parties’ Contentions
Pekary maintains the trial court erred in its prong two ruling as to the
defamation claim in three respects. He maintains the court erred by (a) not
determining whether the Lincoln family members were public figures and
therefore subject to higher defamation pleading and proof standards, (b)
concluding the Lincoln family members met their burden of showing a
reasonable probability of success on their claim, and (c) not granting his
motion in part.
The Lincoln family members contend, in turn, that the trial court never
should have reached the second prong of the anti-SLAAP analysis as the
postings did not involve “a matter of public interest” under the particular
facts of this case.2 In any case, they defend the court’s prong two rulings as
to the applicable defamation standards, their having met their burden to
show minimal merit, and the denial of the motion as to the entirety of the
defamation claim.
Prong One Analysis
“The definition of ‘public interest’ within the meaning of the anti-
SLAPP statute has been broadly construed to include not only governmental

2 A “prevailing party on anti-SLAPP motion need not file a cross-
appeal to preserve his [or her] disagreement with the trial court’s reasoning.”
(Klem v. Access Ins. Co. (2017) 17 Cal.App.5th 595, 609.)

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matters, but also private conduct that impacts a broad segment of society
and/or that affects a community in a manner similar to that of a
governmental entity.” (Damon v. Ocean Hills Journalism Club (2000)
85 Cal.App.4th 468, 479.) “[C]onsumer 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-SLAAP statute.” (Wong v. Jing
(2010) 189 Cal.App.4th 1354, 1366.)
The Lincoln family members do not dispute the postings at issue were
“made in the context of the political debate involving Webster,” but assert
they were “not in connection with the public issue surrounding the Water
Company.” Instead, they claim the postings “involved ongoing controversies
between private parties and did not implicate larger issues of public interest
or concern.” Specifically, and citing to Weinberg v. Feisel (2003)
110 Cal.App.4th 1122 (Weinberg), they maintain the statements about them
and the water company were not a matter of public interest because they did
not “involve an ongoing controversy on a matter of public significance,” but
were, instead, related to a private controversy due to Pekary’s “ongoing
fixation with the manner in which his family was treated in the past.”
In Weinberg, the parties were token collectors. (Weinberg, supra,
110 Cal.App.4th at p. 1127.) After the defendant showed a portion of his
token collection to the plaintiff, he discovered one was missing. He
confronted the plaintiff, who denied he had stolen it. (Id. at p. 1128.) The
defendant then began “what can be characterized as a campaign to oust
plaintiff from the token collecting avocation.” (Ibid.) He published an
advertisement in a monthly issue of a magazine related to token collecting in
which he described the disappearance of his token after he showed it to

6
another collector, but he did not identify the plaintiff as the culprit. (Ibid.)
He later named the plaintiff in “written and oral communications with other
token collectors,” and sent letters to a small group of token collectors stating
the plaintiff took his token. (Ibid.) In the letters, he alleged the plaintiff
engaged in “misrepresentations, misstatements of fact, and outright lies,”
and “is a thief and chronic liar.” (Id. at pp. 1128–1129.)
The plaintiff filed a complaint for libel, slander, and intentional
infliction of emotional distress, and the defendant filed a special motion to
strike, which the trial court denied. (Weinberg, supra, 110 Cal.App.4th at
p. 1129.) The Court of Appeal affirmed, ruling the defendant “failed to
demonstrate that his dispute with plaintiff was anything other than a private
dispute between private parties [and] . . . does not establish that he was
acting on a matter of public interest.” (Id. at p. 1134.) Although “the
operation of the criminal justice system is a matter of public concern . . .
defendant did not report his suspicions to appropriate prosecutorial
authorities, criminal charges are not pending against plaintiff, and plaintiff
is not involved in the criminal justice system.” (Ibid.)
The circumstances in this case bear no resemblance to those in
Weinberg. The postings at issue here were made in online public forums and
were regarding matters of interest to the general public, not solely to a small
subset of people engaged in an obscure hobby.
As the trial court concluded, “[t]he subject matter of the postings
involved the ‘public interest’ because . . . Plaintiff Webster Lincoln’s fitness
for public office, and whether local residents should vote for him, is perhaps
the quintessential example of an issue of public interest.” As to the Water
Company and Webster’s family members who served on the board, the court
concluded “local Water Company customers would indisputably be interested

7
in knowing whether Water Company Board members have been over-
charging residents, stealing community funds, or ‘preying on people’ by
providing unsafe water.” The trial court did not err in concluding the
postings were made in a public forum about a matter of public interest.
Prong Two Analysis
To establish a probability of prevailing, a plaintiff need only have
“ ‘stated and substantiated a legally sufficient claim.’ ” (Equilon Enterprises
v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 63.) “ ‘Put another way, the
plaintiff “must demonstrate that the complaint is both legally sufficient and
supported by a sufficient prima facie showing of facts to sustain a favorable
judgment if the evidence submitted by the plaintiff is credited.” ’ ” (Rusheen
v. Cohen (2006) 37 Cal.4th 1048, 1056 (Rusheen).) “ ‘[T]he plaintiff [must]
establish a probability he or she will prevail on the claim at trial, i.e., to
proffer a prima facie showing of facts supporting a judgment in the plaintiff’s
favor.’ [Citation.] In assessing the probability of prevailing, a court looks to
the evidence that would be presented at trial, similar to reviewing a motion
for summary judgment; a plaintiff cannot simply rely on its pleadings, even if
verified, but must adduce competent, admissible evidence.” (Roberts v. Los
Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 613–614.)
Before considering whether, as the trial court ruled, the Lincoln family
members met their burden of showing a probability of success on their
defamation claims, we set forth the general legal principles that govern an
action for defamation. Defamation “ ‘involves (a) a publication that is (b)
false, (c) defamatory, and (d) unprivileged, and that (e) has a natural
tendency to injure or that causes special damage.’ ” (Price v. Operating
Engineers Local Union No. 3 (2011) 195 Cal.App.4th 962, 970, quoting
5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 529, p. 782.) The

8
“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
(Franklin), citing Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 19
(Milkovich).)
“In determining whether the disputed statement communicates or
implies a provably false assertion of fact, we look at the totality of the
circumstances, looking first to the language of the statement and whether it
was understood in a defamatory sense, and then considering the context in
which the statement was made. (Franklin, supra, 116 Cal.App.4th at p. 385.)
We focus not on the literal truth or falsity of each word in a statement, but
rather on ‘ “ ‘whether the “gist or sting” of the statement is true or false,
benign or defamatory, in substance.’ ” ’ ” (Edward v. Ellis (2021)
72 Cal.App.5th 780, 790.)
“[E]xpressions of opinion may imply an assertion of objective fact. For
example, ‘[i]f a speaker says, “In my opinion John Jones is a liar,” he implies
a knowledge of facts which lead to the conclusion that Jones told an untruth.
Even if the speaker states the facts upon which he bases his opinion, if those
facts are either incorrect or incomplete, or if his assessment of them is
erroneous, the statement may still imply a false assertion of fact.’ ”
(Franklin, supra, 116 Cal.App.4th at p. 385, quoting Milkovich, supra,
497 U.S. at pp. 18–19.)
Nor does “characterizing speech as ‘political’ . . . automatically or
entirely exempt it from liability for defamation. ‘The [United States Supreme
Court] has made clear . . . that even as to public officials, knowingly false
statements of fact are constitutionally unprotected.’ [Citations.] . . . ‘That
speech is used as a tool for political ends does not automatically bring it

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under the protective mantle of the Constitution. . . . Calculated falsehood
falls into that class of utterances which “are no essential part of any
exposition of ideas. . . .” ’ Claims of criminal activity and personal dishonesty
also may not be protected.” (Balla v. Hall (2021) 59 Cal.App.5th 652, 680
(Balla).)
Public figures have the burden of proving both that the challenged
statement is false and that the defendants acted with actual malice. (Balla,
supra, 59 Cal.App.5th at p. 675.) “To prove actual malice, a plaintiff must
show that statements were made with ‘ “knowledge that [they were] false or
with reckless disregard of whether [they were] false or not.” ’ [ Citation.]
‘ “There must be sufficient evidence to permit the conclusion that the
defendant in fact entertained serious doubts as to the truth,” ’ and the
evidence must be clear and convincing. [Citations.] [¶] ‘[A]ctual malice can
be proved by circumstantial evidence.’ [Citation.] Considerations such as
‘anger and hostility toward the plaintiff,’ ‘reliance upon sources known to be
unreliable [citations] or known to be biased against the plaintiff,’ and ‘failure
to investigate’ may, ‘in an appropriate case, indicate that the publisher
himself had serious doubts regarding the truth of his publication.’ [Citation.]
Such evidence is relevant ‘to the extent that it reflects on the subjective
attitude of the publisher.’ ” (Id. at pp. 682–683.)
Demonstrable Falsity
The Lincoln family members demonstrated falsity by submitting
declarations in opposition to the anti-SLAPP motion in which each declared:
“The disparaging statements Defendant Pekary made in his social media
posts about me, my family and the Water Company are entirely untrue.”
Pekary maintains his statements in the social media posts were opinion
and hyperbole, and “not specific enough to imply any false statement of fact.”

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Relying on ZL Technologies, Inc. v. Does 1-7 (2017) 13 Cal.App.5th 603 (ZL
Technologies), he points out “general comments that lack any specificity as to
time or place of alleged misconduct suggest there is no fact being conveyed by
the statement. . . .”
In ZL Technologies, the Court of Appeal observed, “overly vague
statements [citation] and ‘ “generalized” comments . . . “lack[ing] any
specificity as to the time or place of” alleged conduct may be a “further signal
to the reader there is no factual basis for the accusations.” ’ ” (ZL
Technologies, supra, 13 Cal.App.5th at p. 624.) However, the appellate court
went on to explain, “[o]n the other hand, if a statement is ‘factually specific,’
‘earnest’ [citation], or ‘serious’ in tone [citation], or the speaker ‘represents
himself as “unbiased,” ’ ‘ “having specialized” ’ [citation] or ‘ “first-hand
experience,” ’ or ‘ “hav[ing] personally witnessed . . . abhorrent behavior” ’
[citation], this may signal the opposite, rendering the statement actionable.”
(Ibid.)
The Court of Appeal thus concluded the assertion that there was “ ‘[n]o
transparency or accountability for [senior management’s] decisions’ ” was “a
generalized conclusion . . . without tying it to specific conduct, or a time and
place.” (ZL Technologies, supra, 13 Cal.App.5th at p. 628.) The court reached
the opposite conclusion as to statements that “ZL had a ‘practice’ of ‘hir[ing]
people who are fresh out of school with no expertise,’ ‘[n]o organizational
chart, job title, or job description[] exist[ed] in [the] company,’ . . . employee
pay was ‘30-50% lower than industry standards in Silicon Valley’; . . . ZL
management was ‘composed of purely family and school-specific friends,’
there were ‘[n]o experienced managers to grow the company,’ and
management ‘belittle[d] [employees] in public . . . cast[ing] aspersions upon
them.’ ” (Id. at p. 627.) Thus, with the exception of the first review, all the

11
statements “included one or more specific factual assertions that could be
damaging to a business’s reputation.” (Ibid.)
At oral argument, Pekary’s counsel maintained this case “rises and
falls” with Beilenson v. Superior Court (1996) 44 Cal.App.4th 944 (Beilenson).
In that case, Beilenson distributed a campaign mailer regarding his
opponent, Richard Sybert, in a campaign for Congress. (Id. at pp. 946–947.)
The mailer, entitled “ ‘Rich Sybert Ripped Off California Taxpayers,’ ”
charged that “ ‘[w]hile on the public payroll [at the State Office of Planning
and Research], Rich Sybert maintained a private law practice on the side.
Sybert’s clients included foreign investors, a bank, and an insurance company
that had a vested interest in the actions of state government. [¶] Rich
Sybert’s clients paid him more than $140,000 for providing “legal services.”
Sybert took this money for representing private interests, at the same time
he was taking $98,285 a year from taxpayers whom he was supposed to be
serving full time. This was a serious conflict of interest and breach of public
trust.’ ” (Id. at p. 947.)
The trial court denied Beilenson’s anti-SLAPP motion, indicating “it did
not believe [Code of Civil Procedure] section 425.16 to be applicable to
political campaigns,” and “found that Sybert met his burden of proving there
was a ‘possibility that [he] will prevail on the claim. . . .’ ” (Beilenson, supra,
44 Cal.App.4th at p. 948.) The Court of Appeal disagreed, noting “[t]here is
nothing in the language of [Code of Civil Procedure] section 425.16 that
denies its use by politicians.” (Id. at p. 950.)
The Court of Appeal next concluded Sybert had not made a sufficient
showing of the probability of success of his libel lawsuit. (Beilenson, supra,
44 Cal.App.4th at pp. 951–952.) As to the “ ‘rip-off’ ” statement, the court
explained “The mailer here proclaimed it to be wrong for a state official to

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have an outside job, the implication being that all of the official’s time,
attention, and energies ought to be devoted to his public post. This conduct,
in the opinion of Beilenson, was a ‘rip-off.” This colorful epithet, when taken
in context with the other information contained in the mailer, was rhetorical
hyperbole that is common in political debate. [Citations.] As such, the term
‘rip-off’ was not defamatory.” (Id. at p. 951–952.) Likewise, as to the
statement criticizing Sybert “for representing clients who would stand to
profit from their association with him [and] . . . offer[ing] the opinion that
such a situation constituted a conflict of interest,” the court concluded that,
even though Sybert’s practice of law while employed as a state official did not
violate the law, “a citizen could possess the belief that such a custom violates
a higher code of ethical precepts. To charge a breach of ethics is not to charge
a breach of the law.” (Id. at p. 952.) Accordingly, the court concluded
“Beilenson’s accusations were statements of opinion entitled to the protection
of the First Amendment.” (Ibid.)
Contrary to Pekary’s assertion, Beilenson did not involve statements
that were “worse” than those alleged to be defamatory in this case. As the
Beilenson court noted, Beilenson’s campaign flyer did not state Sybert broke
the law, but “opined there had been an unwholesome appearance of
impropriety.” (Beilenson, supra, 44 Cal.App.4th at p. 952.) “To charge a
breach of ethics is not to charge a breach of the law.” (Ibid.) Pekary’s
postings, in contrast, did charge a violation of the law, asserting the Lincoln
family members were stealing community funds. This went beyond any
protected right to “ ‘ “speak foolishly and without moderation” ’ ” in political
debate. (Id. at p. 950.)
Pekary maintains he “did not directly accuse the individual board
members of stealing funds,” but only accused the Water Company of

13
misfeasance. However, in the social media posts, it is clear Pekary was
referring to Lincoln family members stealing funds in their capacity as water
company board members and accused Lincoln family members as a group of
“hurt[ing] this community.” The post asserted Webster’s “mother Niambi
Lincoln and other family members have been running the Palo Alto Park
Mutual Water Company, which is widely known to be a corrupt organization
that has preyed upon many people and stolen community funds for many
years. Don’t let this family get more power to hurt this community.” And
one of the posts referenced a newspaper article, which named Niambi and
Katherine.
The statements made specific factual assertions of criminal activity
that could be damaging to the plaintiffs’ reputations. The posts were earnest,
serious in tone, and suggested Pekary had personal knowledge of the
asserted criminal activity. (See ZL Technologies, supra, 13 Cal.App.5th at
p. 624.) The lack of any specific date or place as to the “stolen community
funds” does not render the statements “not specific enough to imply any false
statement of fact.”
As the trial court ruled, the publications “were ‘of or concerning
Plaintiffs,’ as that term has been used in the context of a defamation claim.
The publication(s) refer to Niambi Lincoln by name, and to ‘other family
members’ on the Board, which clearly encompasses Plaintiff [Katherine]
Loudd. Further, while the publication(s) did not specifically accuse Webster
Lincoln of wrongdoing, Webster Lincoln was the focal point of them, and the
alleged defamatory statements were the stated justification for asking people
not to vote for him.”

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 Malice
As to malice, the Lincoln family members point to Pekary’s retractions
in which he admits the statements were “not fair” and that it was his
“understanding that [Webster] is not on the board of the [water] company,
nor employed there” and therefore he “is not directly responsible for their
actions.” In his second posted retraction, Pekary retracted all his previous
statements about the Water Company. While he claims his retractions
evidence a lack of malice—a claim he did not make in the trial court—malice
“focuses solely on the defendant’s subjective state of mind at the time of
publication.” (Sutter Health v. UNITE HERE (2010) 186 Cal.App.4th 1193,
1210.)
Additionally, Pekary’s declaration in support of his anti-SLAPP motion
suggests a failure to investigate the claims of stealing. He states he relied on
his awareness of lawsuits against the Water Company “regarding corrupt
election procedures for its governing board of directors.” He also stated the
Water Company has been the subject of “multiple news reports regarding
water quality and improper election procedures.” Notably, neither Pekary’s
declaration, nor the attached articles on which he claimed he relied, even
mentioned, let alone substantiated, his statement that the Lincoln family
members had “stolen community funds for many years.”
The Lincoln family members also submitted the declaration of Niambi
Lincoln in which she explained Pekary’s hostility to the Lincoln family. “The
Pekary family has been in a ‘feud’ with my family dating back to 2014 when
[Pekary’s parents] stopped paying their water bill because they believed they
were being overcharged by the Water Company. [¶] . . . The Pekarys did not
pay for their water for 2.5 years, resulting in the Water Company shutting off
their water in September of 2017 and the Pekarys engaging in self-help by

15
breaking the lock on the meter, turning the water back on and parking the
family truck over the meter so it could not be turned off.”
In sum, given the record, the Lincoln family members made a
“ ‘ “sufficient prima facie showing of facts to sustain a favorable judgment if
the evidence submitted by the plaintiff is credited.” ’ ” (Rusheen, supra,
37 Cal.4th at p. 1056.) As the trial court observed, “Plaintiffs state under
oath the accusation is false and unsupported by any evidence. . . . [Pekary]
does not appear to offer any evidence, or even argument, that this accusation
is true. Rather, [Pekary] presents evidence of lawsuits alleging the Water
Company has been holding unfair/improper Board elections. . . . [Pekary]
also cites to public criticisms and complaints that the Water Company has
been providing substandard water to residents that does not meet the State
water quality requirements. [Citation.] But aside from arguing that his
statements should be viewed as opinion/hyperbole, as to the accusation of
stealing community funds, [Pekary] does not appear to argue truth as a
defense. And [Pekary] has not set forth any defense that defeats the
defamation claim as a matter of law . . . nor has [Pekary] shown that any
element of the claim cannot be established.”
Pekary also claims the trial court “improperly shifted the burden of
proof from the Lincoln family to prove malice and instead required Pekary to
prove truth.” (Capitalization omitted.) It did not. The Lincoln family
members met their burden of establishing a prima facie case of defamation.
The court did not require Pekary to prove the truth of his statements but
noted Pekary did not even claim truth as a defense.
As we have observed, the trial court did not decide whether the Lincoln
family members were public figures and therefore subject to the higher
defamation pleading and proof standards for such individuals. Pekary

16
maintains this was error, as do the Lincoln family members (who claim they
are not required to prove malice).
The trial court did not commit an analytical misstep. As the court
observed, the Lincoln family members “appear to concede that Webster
Lincoln, as a candidate for public office, was a public figure for purposes of
this analysis. . . . The parties’ briefing provides no analysis of whether the
Board member Plaintiffs [Katherine and Niambi] could be viewed as limited
purpose public figures. In any event, the Court need not resolve this issue to
rule on the motion. . . . Because [Pekary] does not even appear to defend the
accusation of stealing community funds as a true statement, or offer any
evidence that he believed it to be true, even if the Board member Plaintiffs
could be viewed as limited purpose public figures (an issue the Court does not
reach), the Court still could not grant the motion as to the defamation claim.”
Given that the trial court correctly concluded the Lincoln family
members made a sufficient showing of minimal merit even under the
heightened standard applicable to public figures, the court did not err in not
deciding whether they are, in fact, public figures. (See Park, supra, 2 Cal.5th
at p. 1061.)
Failure to Strike Portions of Defamation Claim
Pekary lastly claims the trial court erred in denying his motion as to
the defamation claim in its entirety. He points to the following allegations
and insists the court should have stricken all the wording except the phrase
we have italicized:
“Whoever you vote for city council, don’t vote for Webster Lincoln.
His mother Niambi Lincoln and other family members have been
running the Palo Alto Park Mutual Water Company, which is widely
known to be a corrupt organization that has preyed upon many people

17
 and stolen community funds for many years. Don’t let this family get
more power to hurt this community.” (Italics added.)
According to Pekary, the trial court “agreed” with him that the alleged
statement “regarding the Water company being corrupt and preying on
people” was opinion “but disagreed with Pekary’s [opinion] arguments
regarding the statement about stealing community funds.” Thus, Pekary
maintains most of the language of the allegation should have been excised
from the complaint.
Pekary correctly points out that in Baral v. Schnitt (2016) 1 Cal.5th
376, 393, our Supreme Court held that anti-SLAPP motions may be used “to
attack parts of a count as pleaded.” Such motions, similar to garden variety
motions to strike, are “well understood as a way to challenge particular
allegations.” (Id. at 394.)
However, the court did not “agree” with Pekary that only the “stolen
community funds” language was actionable. Rather, it stated Pekary “has
not shown that the targeted statements, in their entirety, constitute
opinion/hyperbole. . . . While Defendant may have an argument with respect
to the vague accusation that the Board is ‘corrupt’ and has been ‘preying’ on
people, the Court cannot conclude, for purposes of this motion, that the
accusation that Board members have ‘stolen community funds for years’
constitutes non-actionable opinion or hyperbole.” (Italics added.) Moreover,
as for the supposedly non-actionable language Pekary claims should have
been stricken, Baral also made clear that “[a]ssertions that are ‘merely
incidental’ or ‘collateral’ are not subject to [Code of Civil Procedure] section
425.16. [Citations.] Allegations of protected activity that merely provide
context, without supporting a claim for recovery, cannot be stricken under
the anti-SLAPP statute.” (Baral v. Schnitt, supra, 1 Cal.5th at p. 394.) Here,

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the additional language is contextual and therefore properly remains in the
complaint.
We also note that in his special motion to strike, Pekary sought to
strike the “portions of the complaint at page 3, paragraph 9, and Exhibits ‘A’
and ‘B’ that rely on this statement: ‘His mother Niambi Lincoln and other
family members have been running the Palo Alto Park Mutual Water
Company, which is widely known to be a corrupt organization that has
preyed upon many people and stolen community funds for many years.’ ”
Thus, he did not seek to parse the language of the complaint alleging the
defamatory statement and to have the court strike only a portion of it.
DISPOSITION
The order is affirmed. Respondents to recover costs on appeal.

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 _________________________
Banke, J.

We concur:

_________________________
Margulies, P.J.

_________________________
Wiss, J.*

*Judge of the San Francisco Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

A162427, Lincoln v. Pekary

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