The One Experience v. Loomstein CA2/3

Filed 8/12/22 The One Experience v. Loomstein CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE ONE EXPERIENCE, LLC, B309857

Plaintiff and Appellant, Los Angeles County
Super. Ct. No.
v. 20SMCV00478

DAVID LOOMSTEIN,

Defendant and Respondent.

APPEAL from an order of the Superior Court of
Los Angeles County, Elaine W. Mandel, Judge. Reversed.

Burgee & Abramoff and John G. Burgee for Plaintiff
and Appellant.

The Kernan Law Firm, S. Michael Kernan and R. Paul
Katrinak for Defendant and Respondent.
_________________________
 Plaintiff The One Experience, LLC appeals an order
granting Defendant David Loomstein’s special motion to
strike under California’s anti-strategic lawsuit against public
participation (anti-SLAPP) statute (Code Civ. Proc., § 425.16).1
The lawsuit alleged defendant interfered with a contract to fund
a public music festival by making disparaging remarks about
plaintiff’s managing member to the festival’s chief financial
backer, resulting in the investor repudiating his agreement
to provide $350,000 in financing. Based on the context in which
the allegedly defamatory statements were made—in private text
messages to the festival’s sole investor amid a contract dispute
with plaintiff’s managing member—we conclude plaintiff’s claims
do not arise from conduct in furtherance of defendant’s right
of free speech on a public issue. We reverse.
FACTS AND PROCEDURAL BACKGROUND
We summarize the relevant facts in the light most
favorable to plaintiff, the party opposing the anti-SLAPP motion.
(Murray v. Tran (2020) 55 Cal.App.5th 10, 16 (Murray), citing
Park v. Board of Trustees of California State University (2017)
2 Cal.5th 1057, 1067 (Park).)
1. Background
Plaintiff produces an annual arts and music festival
marketed as the One Love Festival (the Festival). The company’s
managing member is Kenneth Schwenker.
In 2017, plaintiff hired defendant as the controller and
manager of community sales for the Festival. Defendant

1 Statutory references are to the Code of Civil Procedure
unless otherwise designated.

2
understood his primary responsibility was to keep the Festival
on budget; however, according to defendant, Schwenker “did not
adhere to the original deal” and limited defendant’s job to only
community sales. The Festival lost approximately $260,000 that
year, and many of the performers were not paid for their services.
Defendant was apprehensive about working with plaintiff
or Schwenker again after the 2017 Festival. However, a mutual
friend told him that Schwenker had been misled by his previous
business partners, and that Schwenker needed defendant’s help
with the business and creative aspects of the next year’s Festival.
In May 2018, plaintiff hired defendant as the “Music
Director” for the 2018 Festival. While defendant contends
he was also hired as “lineup curator, contract administrator,
affiliate sales director, and manager of the 2017 back payouts,”
Schwenker disputed that there was any agreement to give
defendant “ ‘curation and control’ ” of the Festival’s lineup.
The same month, defendant met Lee Pearson who, along
with another individual, would be financing the 2018 Festival.
After their meeting, Pearson sent a text message to defendant,
observing the “curation” needed defendant’s “insight.” Defendant
replied, proposing to “run a few names by [Pearson].”
On June 9, 2018, Schwenker, on plaintiff’s behalf, signed
an agreement with Pearson, under which Pearson’s company
agreed to provide $350,000 of financing for the Festival. The
funding contract granted Pearson the authority to approve the
Festival’s final budget and the names of the proposed headliner
artist and two sub-headliner artists. It also required plaintiff to
consult with Pearson regarding “all aspects of the management
and production” of the Festival.

3
 On June 15, 2018, defendant emailed Schwenker with
several business questions regarding the Festival. At the
time, defendant says, he “was still under the impression that
[he] was the music director, affiliate sales director, and . . .
responsible for the payouts of the artists from the 2017 Festival.”
However, according to defendant, “Schwenker continued to
delegate [defendant’s] responsibilities to others, or [to] solicit
others[’] opinions on potential performers for the Festival.”
After speaking with Schwenker, defendant sent a text message
to Pearson, writing, “When you have a moment, I’d like to
take a moment and discuss your impressions of my roles and
responsibilities for the show. I just spoke with [Schwenker]
and I’m completely unclear at this moment.”
On June 19, 2018, defendant emailed Schwenker a
written contract, proposing to fix defendant’s duties as “Producer”
of the Festival. The proposed contract would make defendant
the senior talent broker and programming director, with
responsibility for booking talent and “developing and finalizing
set times and lineups on all music stages at the Festival.”
Defendant would also have responsibility “to manage [the]
process of paying out artists owed additional money from
the [2017 Festival].”
Schwenker rejected defendant’s proposed contract. He
reiterated that he—not defendant—was to have “final say on
the talent” and that he and Pearson were to mutually agree on
the first and second tier headliners under the funding contract.
After receiving Schwenker’s response, defendant sent a
text message to Pearson, explaining that he and Schwenker were
“very far from where we were when this conversation began.”
Pearson replied that Schwenker’s response was “disconcerting

4
for [him].” He later sent a text message to defendant explaining
that he had spoken to Schwenker and that Schwenker was “going
to man up and manage the situation.” Pearson said he planned
to meet with Schwenker the next day, June 22, 2018, and offered
to give defendant a ride. Defendant replied that he would be at
the meeting.
On June 22, 2018, defendant met with Schwenker and
three other people involved in the Festival’s production. Pearson
was not able to attend the meeting. According to defendant,
he learned that the meeting attendees had already spent a week
planning the Festival without him, at which point, it became
“clear” to defendant that “Schwenker was fully backtracking on
[their] agreement, and was poorly planning the Festival, just as
he did the year before.” Defendant admitted he “became upset,
and vocalized [his] disagreement with the way things were
being conducted.” According to Schwenker, defendant made
“derogatory statements about [Schwenker] and [his] handling
or management” of the Festival at the meeting.
Later that day, Schwenker learned from Pearson that
defendant had also made “derogatory statements” about
Schwenker to Pearson following the meeting. According to
Schwenker, Pearson then informed Schwenker that he was
suspending his performance on the funding contract because of
defendant’s derogatory statements.
2. The Complaint
Plaintiff sued defendant asserting four causes of action
for (1) intentional interference with contractual relations;
(2) intentional interference with prospective economic advantage;
(3) negligent interference with prospective economic advantage;
and (4) inducing breach of contract. The complaint alleges

5
defendant made “statements about SCHWENKER that were
false, inflammatory, and ha[d] a natural tendency to injure
the Plaintiff’s reputation” at a “creative team meeting” on
June 22, 2018, including that Schwenker “is an idiot with
no idea of what he is doing”; that “everything [SCHWENKER]
does is wrong”; and that it was “stupid” to “creatively work[ ]
on the festival . . . because [SCHWENKER] is an idiot.”
After the meeting, defendant allegedly repeated the “false
and inflammatory statements” to Pearson. On June 26, 2018,
as a direct and proximate result of defendant’s statements,
Pearson allegedly repudiated the funding contract by reducing
his commitment from $350,000 to $125,000.
3. The Special Motion to Strike and Evidence
Defendant moved to strike each cause of action under
the anti-SLAPP statute, asserting all claims arose from “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.” (§ 425.16,
subd. (e)(4).) He argued the claims “plainly arose from a
protected activity because ‘[m]usic, as a form of expression
and communication, is protected under the First Amendment’ ”
and he was sued for conduct associated with “curating artists
for the Festival.” Defendant emphasized his “alleged statements
were made at [a] meeting with other creatives and producers
of the Festival, and if repeated, . . . would have been repeated
to a financer of the Festival.” As for plaintiff’s probability of
prevailing on the claims, defendant argued the statements were
opinions that would not support a claim for defamation; there
was no evidence the statements were false; there was no evidence

6
defendant intended to interfere with the funding contract; and
there was no evidence his conduct was “wrongful.”
Defendant offered a supporting declaration with his
special motion to strike. In addition to recounting his version
of the underlying facts, defendant’s declaration authenticated
a series of private text messages he and Pearson exchanged
between May 23, 2018 and June 26, 2018—the date Pearson
allegedly repudiated the funding contract with plaintiff.
In opposition, plaintiff disputed that its claims arose from
protected activity. While it acknowledged a concert promoter’s
conduct generally qualified for protection, plaintiff maintained
defendant was never contracted to promote the Festival and
he never had “final say on who performs.” Rather, plaintiff
argued, defendant made the offending “derogatory remarks
to the Festival investor in an attempt to obtain more control
over the Festival.”
In his supporting declaration, plaintiff’s managing member,
Schwenker, explained it was “only after the filing of [the]
complaint” and through defendant’s declaration that he
became aware of defendant’s private text messages to Pearson.
Schwenker highlighted several text messages defendant sent
to Pearson in the days preceding the repudiation of the funding
contract, including messages in which defendant claimed
Schwenker had been “misleading” Pearson “partly because
he’s clueless [and] partly because he lacks integrity”; Schwenker
had “no idea what his lying and misrepresenting [was] causing
[defendant] and a ton of other people who [were] being very
badly impacted by his malpractice”; it was “not in [Schwenker’s]
character” to “do the right thing”; and Pearson “might need to
let [Schwenker] know that if this doesn’t get resolved there won’t

7
be a show this year, and he is on the hook for fraudulently
representing his entity to [Pearson].”
Plaintiff argued these private text messages showed
defendant interfered with the funding contract by misleading
Pearson to believe Schwenker “misrepresented sales figures.”
And, by making “degrading comments about [Schwenker’s]
commercial and professional integrity,” plaintiff argued
defendant “led the investor to breach the contract.”
In his reply brief, defendant asserted—for the first time—
plaintiff could not prevail on its claims because the company
failed to present evidence of damages. Emphasizing that
the funding contract with Pearson was structured as a loan,
defendant argued plaintiff could not claim damages for money
it was required to repay. Additionally, because the contract
set forth a number of preconditions to Pearson’s obligation to
fully fund the loan, defendant argued plaintiff could not prevail
without presenting evidence those preconditions were satisfied.
4. The Trial Court’s Ruling
In advance of the hearing on defendant’s special motion
to strike, the trial court issued a tentative ruling denying
the motion, concluding plaintiff’s claims arose from protected
activity, but plaintiff’s evidence was sufficient to establish
a likelihood of success on the merits. The court reasoned
defendant’s “title ‘music director’ implies he helped determine
the artistic content and assist with production” and, because
his “statements were made at a creative team meeting, relating
to the competence of one of the festival’s chief organizers,”
defendant’s conduct “to ‘advance or assist’ the festival qualifie[d]
as protected activity.” However, with respect to plaintiff’s
likelihood of success, the court found Schwenker’s declaration

8
was sufficient to prove defendant knew of the funding contract,
“knew his statements would cause Pearson to withdraw his
funding,” and “intended his statements to have that effect.”
At the hearing, defendant persuaded the trial court
to reconsider its ruling on the second prong. Revisiting the
argument raised in his reply, defendant asserted plaintiff
could not establish damages simply by showing Pearson lent
it less money and plaintiff had presented no evidence that
the Festival would have made more money had the loan been
fully funded. Plaintiff acknowledged Schwenker’s declaration
had not addressed the profits plaintiff lost as a result of
defendant’s alleged interference and requested the court grant
a continuance to allow Schwenker to submit a supplemental
declaration regarding damages. The trial court granted
the request and continued the hearing.
After receiving and considering Schwenker’s supplemental
declaration, the court granted defendant’s special motion to
strike all causes of action, concluding plaintiff’s evidence of lost
potential profits was “speculative” and insufficient to support
a claim for damages. After moving to vacate the ruling, plaintiff
filed a timely notice of appeal.
DISCUSSION
1. The Anti-SLAPP Analysis and Standard of Review
The anti-SLAPP statute, section 425.16, establishes a
procedure for expeditiously resolving “nonmeritorious litigation
meant to chill the valid exercise of the constitutional rights of
freedom of speech and petition in connection with a public issue.”
(Sipple v. Foundation for Nat. Progress (1999) 71 Cal.App.4th
226, 235.) “When served with a SLAPP suit, the defendant may
immediately move to strike the complaint under section 425.16.

9
To determine whether this motion should be granted, the trial
court must engage in a two-step process.” (Hansen v. Department
of Corrections & Rehabilitation (2008) 171 Cal.App.4th 1537,
1543; Equilon Enterprises v. Consumer Cause, Inc. (2002)
29 Cal.4th 53, 67 (Equilon).)
The first prong of the anti-SLAPP analysis requires the
court to decide “whether the defendant has made a threshold
showing that the challenged cause of action is one arising from
protected activity.” (Equilon, supra, 29 Cal.4th at p. 67; § 425.16,
subd. (b)(1).) “[T]he statutory phrase ‘cause of action . . . arising
from’ means simply that the defendant’s act underlying the
plaintiff’s cause of action must itself have been an act in
furtherance of the right of petition or free speech. [Citation.]
In the anti-SLAPP context, the critical point is whether
the plaintiff’s cause of action itself was based on an act in
furtherance of the defendant’s right of petition or free speech.”
(City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78 (City of
Cotati).) Thus, the court must consider the elements of a
claim and determine what actions supply those elements and
consequently form the basis for the defendant’s alleged liability.
(Park, supra, 2 Cal.5th at p. 1063.) Allegations of protected
activity that are “ ‘merely incidental’ or ‘collateral’ ” or that
“merely provide context, without supporting a claim for recovery,
cannot be stricken under the anti-SLAPP statute.” (Baral v.
Schnitt (2016) 1 Cal.5th 376, 394.) “In deciding whether
the ‘arising from’ requirement is met, a court considers ‘the
pleadings, and supporting and opposing affidavits stating
the facts upon which the liability or defense is based.’ ”
(City of Cotati, at p. 79, quoting § 425.16, subd. (b).)

10
 Section 425.16, subdivision (e), describes four categories
of conduct that constitute protected activity. Defendant
moved to strike each of plaintiff’s claims under section 425.16,
subdivision (e)(4), which defines protected activity to include
“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.” Commonly referred to as the “catchall
provision,” this subdivision “extends the protection of the
anti-SLAPP statute beyond actual instances of free speech
to all conduct in furtherance of the exercise of that right when
undertaken in connection with a public issue or issue of public
interest.” (Ojjeh v. Brown (2019) 43 Cal.App.5th 1027, 1036
(Ojjeh); FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th
133, 139–140 (FilmOn).)
If the court finds the defendant has made the threshold
showing, the analysis proceeds to the second prong, under which
the court “determines whether the plaintiff has demonstrated
a probability of prevailing on the claim.” (Equilon, supra, 29
Cal.4th at p. 67; § 425.16, subd. (b)(1).) To establish the requisite
probability of prevailing, the plaintiff need only have “ ‘stated
and substantiated a legally sufficient claim.’ ” (Briggs v. Eden
Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1123.)
We independently review the trial court’s ruling
on an anti-SLAPP motion under the de novo standard.
(ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993,
999.) “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

11
to being stricken under the statute.” (Navellier v. Sletten (2002)
29 Cal.4th 82, 89 (Navellier).)
2. Defendant’s Alleged Liability Does Not Arise from
Conduct in Furtherance of the Constitutional Right
of Petition or Free Speech
The anti-SLAPP statute’s catchall provision protects
“any other conduct in furtherance of the exercise of . . . the
constitutional right of free speech in connection with a public
issue or an issue of public interest.” (§ 425.16, subdivision (e)(4).)
In FilmOn, our Supreme Court clarified that “a statement is
made ‘in connection with’ a public issue when it contributes to—
that is, ‘participat[es]’ in or furthers—some public conversation
on the issue.” (FilmOn, supra, 7 Cal.5th at p. 151.) To determine
whether a statement contributes to a public conversation on a
public issue, “a court must consider the context as well as the
content of a statement.” (Id. at p. 149.) “First, we ask what
‘public issue or . . . issue of public interest’ the speech in question
implicates—a question we answer by looking to the content
of the speech. [Citation.] Second, we ask what functional
relationship exists between the speech and the public
conversation about some matter of public interest. It is at the
latter stage that context proves useful.” (Id. at pp. 149–150.)
“[T]he inquiry of whether a statement contributes to the public
debate is one a court can hardly undertake without incorporating
considerations of context—including audience, speaker, and
purpose.” (Id. at pp. 151–152.)
Before we can assess whether the content and context of
defendant’s conduct contributes to a public conversation on a
public issue, we must first identify the conduct that each cause
of action is based upon. (City of Cotati, supra, 29 Cal.4th at

12
p. 78.) To do this, we begin with the elements of each claim
and determine what conduct supplies those elements and
consequently forms the basis for defendant’s alleged liability.
(Park, supra, 2 Cal.5th at p. 1063.) In conducting this analysis,
“[w]e do not . . . weigh the evidence, but accept the plaintiff’s
submissions as true and consider only whether any contrary
evidence from the defendant establishes its entitlement to
prevail as a matter of law.” (Id. at p. 1067.)
The complaint asserts four causes of action: intentional
interference with contract; intentional interference with
prospective economic advantage; negligent interference with
prospective economic advantage; and inducing breach of
contract. The first three claims require an act by the defendant
(intentional or negligent) to disrupt the plaintiff’s contractual
or economic relationship with another party; an actual disruption
of the relationship; and economic harm proximately caused by
the defendant’s alleged act. (Pacific Gas & Electric Co. v. Bear
Stearns & Co. (1990) 50 Cal.3d 1118, 1126; Venhaus v. Shultz
(2007) 155 Cal.App.4th 1072, 1078.) The fourth claim for
inducing breach of contract has essentially the same elements
as intentional interference with contact but requires an alleged
intent to induce a breach of a valid contract. (Bledsoe v. Watson
(1973) 30 Cal.App.3d 105, 108; see Winchester Mystery House,
LLC v. Global Asylum, Inc. (2012) 210 Cal.App.4th 579, 596.)
For all claims, the disruptive conduct must be “independently
unlawful, that is, ‘proscribed by some constitutional, statutory,
regulatory, common law, or other determinable legal standard.’ ”
(Winchester Mystery House, at p. 596; Bledsoe, at p. 108 [to plead
a cause of action for inducing breach of contract, plaintiff must
allege “defendant’s unjustifiable or wrongful conduct”].)

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 The complaint alleges defendant knew of a funding contract
between plaintiff and its chief financial backer, Lee Pearson,
and defendant made “slanderous and derogatory” statements
about plaintiff’s managing member, Kenneth Schwenker, to
Pearson following a creative team meeting on June 22, 2018.
These statements allegedly caused Pearson to repudiate the
contract on June 26, 2018 by reducing his funding commitment
from $350,000 to $125,000.
In a declaration supporting his special motion to strike,
defendant disclosed a series of private text messages he sent to
Pearson in the days preceding the investor’s alleged repudiation
of the funding contract. Plaintiff maintains these text messages
reveal the specific conduct by which defendant disrupted
plaintiff’s contractual and economic relationship with Pearson.2

2 In paragraph 11 of the complaint, plaintiff identified
two statements that defendant allegedly made about Schwenker
at the creative team meeting and repeated to Pearson:
(a) “Referring to SCHWENKER, ‘he is an idiot with no idea
of what he is doing,’ ‘wasted my time for coming to the meeting
as everything [SCHWENKER] does is wrong.’ ”; and (b) “ ‘The
fact that you are creatively working on the festival is stupid
because [SCHWENKER] is an idiot.’ ” At the initial hearing
on defendant’s anti-SLAPP motion, plaintiff stipulated to
striking these statements from the complaint, explaining that
the evidence submitted with defendant’s special motion to strike,
as recounted in Schwenker’s declaration supporting plaintiff’s
opposition, disclosed the actual “false statements” that gave rise
to defendant’s alleged liability. In accordance with counsel’s
stipulation, the court granted the special motion to strike the
statements made in paragraph 11 of the complaint. Plaintiff does
not challenge that ruling on appeal. Thus, our review is limited

14
Defendant grants that these text messages must be the conduct
upon which each claim is based. The parties disagree, however,
about which text messages we should consider in assessing
whether plaintiff’s claims arise from protected activity.
Defendant maintains the preparation of a public music
festival is an issue of public interest. (See Symmonds v. Mahoney
(2019) 31 Cal.App.5th 1096, 1106 [“ ‘selection of a [musician] is
. . . an act in furtherance of the exercise of free speech’ ”]; see also
Cinevision Corp. v. Burbank (9th Cir. 1984) 745 F.2d 560, 568
[music concert production and promotion is protected expression,
recognizing “a concert promoter, like a bookseller or theater
owner, is a type of ‘clearinghouse’ for expression”].) He contends
the content of his text messages implicated that issue because
he primarily criticized Schwenker’s competence to run such
a festival and to select the bands that would perform at it. To
prove his point, defendant highlights messages he sent Pearson

to whether the court properly granted the special motion to
strike each cause of action based on the text messages disclosed
in defendant’s declaration. (See Murray, supra, 55 Cal.App.5th
at p. 25 [in determining whether the moving party has made
a prima facie showing that a claim arose from protected activity,
“we start with the pleadings and also consider the evidentiary
submissions”]; City of Cotati, supra, 29 Cal.4th at p. 79; Navellier,
supra, 29 Cal.4th at p. 90 [examining “relevant documents” to
determine whether acts complained of fall within language of
anti-SLAPP statute]; Contreras v. Dowling (2016) 5 Cal.App.5th
394, 408 [court is “not limited to examining the allegations of
the complaint alone but rather considers the pleadings and the
factual material submitted in connection with the special motion
to strike”]; Karnazes v. Ares (2016) 244 Cal.App.4th 344, 353
[considering pleadings plus declaration and e-mails for step one].)

15
that, he says, express his overriding concern for “the artists and
the public’s experience,” including statements that Schwenker
“ ‘has no feel for the music, the business, or the community,’ ”
and that Schwenker “ ‘is utterly clueless about the stakes in all
of this,’ ” as “ ‘[h]e places ZERO value in the community.’ ” Above
all, defendant emphasizes the following text message, which he
says provides “the most plain example” that plaintiff’s claims are
based upon statements defendant made regarding production
of the Festival and the selection of bands:
“ ‘Yes, curating a show is an art AND
a science. But you can tell when picks are
totally self-indulgent. They are doing exactly
what happened last year, which they hated.
Personal favorites only they know and like.
Plus some names that will totally turn off
music aficionados. And even though any big
name will carry a certain amount of weight,
if you put them in a setting beyond initiating
a commitment to drive thirty minutes, park,
and attend a three hour show, the equation
totally changes.’ ”3
Plaintiff acknowledges the public has an interest in music
festivals but argues defendant’s supposed focus on band selection
is “wholly contrived,” and “totally ignores” statements defendant

3 We note defendant sent this text message to Pearson
on June 26, 2018, after Pearson sent a message to defendant
disclosing he had decided “the investment would need to drop
to 105k”—in other words, apparently after the alleged harm
had occurred.

16
made in his private text exchange with Pearson that “accuse
Schwenker of defrauding the investor.” Plaintiff argues private
text messages about the business practices and integrity of a
festival promoter’s managing member do not bear on the public’s
interest in music festivals and do not contribute to the public
discourse at the core of that interest.
As our Supreme Court recognized in FilmOn, while
“[m]ost often, courts strive to discern what the challenged speech
is really ‘about’—a narrow, largely private dispute, for example,
or the asserted issue of public interest,” this “focus on discerning
a single topic of speech is less than satisfying” because “speech
is rarely ‘about’ any single issue.” (FilmOn, supra, 7 Cal.5th
at p. 149.) Indeed, because the content of any given statement
or collection of statements is often susceptible of various
interpretations, it is “virtually always” the case that “defendants
succeed in drawing a line—however tenuous—connecting their
speech to an abstract issue of public interest.” (Id. at p. 150.)
“But the catchall provision demands ‘some degree of closeness’
between the challenged statements and the asserted public
interest.” (Ibid.) Thus, a narrow focus on the content of the
relevant speech is insufficient; we must also examine “the specific
nature of defendant’s speech and its relationship to the matters
of public interest.” (Id. at p. 152.) To do this, we need to look at
“the broader context” in which the speech is made, “discerning
through that context whether [defendant’s] conduct qualifies
for statutory protection by furthering the public conversation
on an issue of public interest.” (Id. at p. 153.)
The context of defendant’s text exchange with Pearson
convinces us that defendant has not been sued for conduct that
furthered the public conversation on musical performances,

17
the festival experience, or any other matter that makes a music
festival an issue of public interest. (See FilmOn, supra, 7
Cal.5th at pp. 150–151.) As defendant’s declaration, Schwenker’s
declaration, and the series of text messages all confirm, shortly
after defendant met Pearson and learned of the funding contract,
he became embroiled in a dispute with Schwenker over the scope
of his work and what defendant saw as Schwenker “delegat[ing]
[defendant’s] responsibilities to others.” The dispute came to
an apparent head when Schwenker rejected a written contract
defendant proposed that would have made defendant the
senior talent booker and programming director for the Festival,
with authority over booking talent and establishing the lineup
for musical acts. The evidence shows defendant believed
Pearson, through the funding contract, had influence over
Schwenker, and defendant anticipated Pearson would attend
the creative team meeting on June 22, 2018 to support
defendant’s expanded role in producing the Festival.
When Pearson missed the meeting, defendant “unloaded on
[Schwenker],” then began sending text messages to Pearson
attacking not only Schwenker’s management competency,
but also his character, integrity, and honesty. This is the
relevant context for evaluating the contents of defendant’s
private text exchange with plaintiff’s chief financial backer.
In his text messages to Pearson on June 23, 2018, following
the creative team meeting, defendant complained there was
“a huge gap between the role I was promised and [Schwenker’s]
management of the situation.” In response to Pearson’s
suggestion that defendant seemingly had “so much angst about
the situation,” defendant wrote, “I’m not at all certain I can
trust anything out of [Schwenker’s] mouth”; “he is not at all

18
forthcoming when it comes to written agreements”; “[Schwenker]
is completely spineless”; and “when [Schwenker] is confronted
with his lies and bullshit, he starts making excuses and
accusations.” Defendant concluded the message warning
Pearson: “As I see it, you’ve got a bunch of major problems here,
including not just expectations on my part, but the actual
agreements and assurances that were being made with me
and subsequently broken. . . . [A]greements need to be made
and kept. You guys need to approach the situation through
the requirement of agreement and integrity[,] [b]ecause I am
experiencing the pain of the lack thereof on this show.”
In another string of text messages the same day, after
complaining that the attendees at the creative team meeting
had asserted the “entire experience” would be “curated by them,”
defendant returned to his attacks on Schwenker’s honesty
in relation to defendant’s role in the Festival and agreements
in general, asserting, “[Schwenker] is reneging on every offer
at this point[,] knowing I won’t stand for [it].” And, again,
defendant issued a warning to Pearson about the funding
contract and Schwenker’s fidelity to its terms: “[Schwenker]
is trying to get the maximum amount of money from you for
the minimum amount of input and control.” “[He] wants you to
have the least influence possible. You not attending that meeting
yesterday was a god-send to [Schwenker]. And the end of me.”
On June 23, 2018, defendant connected his most pointed
attacks on Schwenker’s character to the financial aspects of the
Festival and “previous investor liability” from the earlier festival
Schwenker produced. He warned Pearson: “[Schwenker] doubled
his losses last year because he wasn’t qualified to be controller,
and he wouldn’t hire someone (in that case, me) who was”; “His

19
misleading you is partly because he’s clueless[,] [a]nd partly
because he lacks integrity”; “You didn’t have access to a lot
of information because [Schwenker] wasn’t going to share it
with you, and you didn’t know who knew where the bodies were
buried”; “And it’s pathetic that he has no idea what his lying and
misrepresenting is causing me and a ton of other people who are
being very badly impacted by his malpractice”; “But I am pissed
that I trusted [Schwenker] would do the right thing when it’s
not in his character.” Finally, defendant suggested to Pearson,
“Well, you might need to let [Schwenker] know that if [the
financial liability from the earlier festival] doesn’t get resolved
there won’t be a show this year, and he is on the hook for
fraudulently representing his entity to you.” Defendant sent
all these text messages before Pearson allegedly repudiated
the funding contract on June 26, 2018.
It is true that some of defendant’s text messages to Pearson
were critical of the band selections Schwenker’s creative team
had proposed. But “the focus of our inquiry must be on ‘the
specific nature of the speech,’ rather than on any ‘generalities
that might be abstracted from it.’ ” (FilmOn, supra, 7 Cal.5th
at p. 152.) The complaint’s allegations and the evidence
presented in connection with defendant’s special motion to strike
confirm that plaintiff has sued defendant for making personally
disparaging remarks about its managing member’s integrity
in private text exchanges with plaintiff’s chief financial backer
that allegedly disrupted plaintiff’s contractual and economic
relationship with that investor. These disparaging remarks were
seemingly motivated by defendant’s admitted refusal to “trust
anything out of [Schwenker’s] mouth” and his conviction that
Schwenker “reneg[ed] on every offer” that defendant believed

20
he had received about his role in producing the Festival. While
defendant can point to some messages where he criticized
creative decisions in urging Pearson to support his expanded role
in the Festival’s production, that is insufficient to demonstrate
his private text messages “participated in, or furthered, the
discourse that makes [a music festival] an issue . . . of public
interest.” (Id. at p. 151.) Defendant “cannot merely offer a
‘synecdoche theory’ of public interest, defining [his] narrow
dispute by its slight reference to the broader public issue.”
(Id. at p. 152.)
Neither Murray, supra, 55 Cal.App.5th 10, nor Ojjeh,
supra, 43 Cal.App.5th 1027, compels a different conclusion.
The plaintiff in Murray sued his former partner in a dental
practice for defamation after the defendant told a group of
individuals, including the plaintiff’s new employer, that the
plaintiff had engaged in substandard dental work. (Murray,
at p. 15.) Applying the FilmOn analysis, the Murray court
held the statements made to the employer were protected under
the anti-SLAPP statute’s catchall provision, reasoning that “a
dentist’s competence to perform dental work” is an issue of public
interest and the communications to plaintiff’s new employer
“promoted the public conversation on that issue because
they were made to a person who had direct connection to and
authority over the patient population with whom [the plaintiff]
was working at the time.” (Murray, at p. 35.) The court
emphasized that in communicating with the employer,
the defendant expressly stated “he wanted to ‘protect’
[the employer’s] patients from ‘substandard care.’ ” (Ibid.)
To be sure, Pearson, like the plaintiff’s employer in Murray,
had some authority through the funding contract to shape the

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public’s experience of the music festival. But, as we have
discussed, unlike in Murray, the context of defendant’s private
text exchange with the Festival’s chief financial backer does
not support the premise that defendant intended his disparaging
remarks about Schwenker to be communicated to the public
or to influence Pearson’s exercise of that authority.4 Rather,
this context shows defendant was primarily motivated by his
conviction that Schwenker had “broken” the “agreements and
assurances” made to defendant about defendant’s assumed role
in the Festival’s production. And, consistent with that conviction,
defendant’s apparent purpose was to warn Pearson that
Schwenker was also “misleading” the investor about the
Festival’s production and anticipated financial performance.
This personally motivated conduct that, according to Schwenker’s
declaration, Pearson foreseeably used to repudiate his financial
relationship with plaintiff, is a far cry from the defendant’s
communication in Murray for the purpose of “ ‘protect[ing]’
[the employer’s] patients from ‘substandard care.’ ” (Murray,
supra, 55 Cal.App.5th at p. 35, italics added; see FilmOn, supra,
7 Cal.5th at p. 153 [reports regarding contents of public website,
communicated “privately, to a coterie of paying clients” that
clients used “for their business purposes alone” not protected
under catchall provision]; Xu v. Huang (2021) 73 Cal.App.5th
802, 806, 819 [statements that a business competitor was

4 Indeed, although the funding contract gave Pearson
authority to approve the Festival’s headliners, Pearson informed
defendant that he saw the Festival as “[Schwenker’s] show”
and his role as “just consulting on it as a requirement of the
investment.”

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“dishonest and unethical in [his] business practices,” “made in
private settings and for the purpose of increasing the sales of
the speaker, who was not a neutral or disinterested ‘third party’
ostensibly seeking ‘to aid and protect consumers’ ” was not
protected speech under catchall provision].)
In Ojjeh, the defendants solicited and obtained a $180,000
investment from the plaintiff to produce a documentary film
on the Syrian refugee crisis. (Ojjeh, supra, 43 Cal.App.5th at
p. 1032.) The plaintiff later sued, claiming that “no ‘significant’
or ‘substantial’ work had been performed on the film, and that
defendants had breached their contractual obligations, [and]
defrauded him of his investments.” (Ibid.) Because the film was
never completed or displayed to the public, the plaintiff argued
“there was no ‘actual speech’ that qualified for protection,” even
though the Syrian refugee crisis was an issue of public interest.
(Id. at p. 1040.) The Ojjeh court disagreed, holding the
“solicitation of investment funding [was] reasonably viewed as
conduct in furtherance of the documentary’s production.” (Ibid.)
Although the documentary was not completed, the court reasoned
anti-SLAPP protection was nonetheless warranted and vital, as
a lawsuit targeting that sort of preliminary activity “threatens to
chill participation in speech-related processes and, if successful,
may block the exercise of free speech.” (Id. at p. 1042.)
Defendant cites Ojjeh for the proposition that conduct in
furtherance of the production of a creative project is protected.
We do not disagree, but defendant’s conduct in this case simply
is not analogous to the conduct of the defendants in Ojjeh. As the
Ojjeh court recognized, the defendants’ solicitation of investment
funds warranted protection because those actions “assist or are
helpful in advancing the exercise of the right of free speech, even

23
if the speech activity is still formative or incomplete at the time
a lawsuit is filed.” (Ojjeh, supra, 43 Cal.App.5th at p. 1041.)
Although the parties here were engaged in the preparation of
a large public music festival, personal attacks on the character
and integrity of plaintiff’s managing member, privately
communicated to the Festival’s chief financial backer, cannot
have been contemplated to assist or to help the preparation
of that public event.
Having assessed the content and context of the conduct
giving rise to defendant’s alleged liability, we conclude defendant
failed to establish plaintiff’s claims arise from “conduct in
furtherance of the exercise of . . . the constitutional right of free
speech in connection with a public issue or an issue of public
interest.” (§ 425.16, subdivision (e)(4).) Because defendant’s
failure to satisfy the first prong of the anti-SLAPP analysis is
fatal to his special motion to strike, we do not reach the second
prong regarding plaintiff’s probability of prevailing on its claims. 5
(Navellier, supra, 29 Cal.4th at p. 89.)

5 Defendant’s motion to augment the record is denied. The
motion concerns evidence relevant to the second prong analysis
obtained after the trial court entered its order on the special
motion to strike. That evidence is irrelevant to our disposition
of this appeal.

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 DISPOSITION
The order is reversed. Plaintiff The One Experience is
entitled to its costs.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

We concur:

EDMON, P. J.

KALRA, J.*

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

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