IRION, J.
In a cross-complaint, Grace Wilson named five individual cross-defendants, one in each of five causes of action for defamation. Pursuant to California's anti-SLAPP statute, Code of Civil Procedure section 425.16,
As we explain, we deny Wilson's request to present new evidence, and Wilson did not meet her burden of establishing reversible error. Accordingly, we will affirm the order of dismissal and two judgments on appeal.
Because a "judgment or order of a lower court is presumed to be correct on appeal, . . . all intendments and presumptions are indulged in favor of its correctness." (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) As a related concept, since such a judgment or order is "`presumed correct,' "on appeal the appellant has the burden of establishing reversible error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (Denham).)
As part of this burden on appeal, an appellant's opening brief "must [¶] . . . [¶] [p]rovide a summary of the significant facts limited to matters in the record." (Cal. Rules of Court,
As a result, "[s]tatements of fact that are not supported by references to the record are disregarded by the reviewing court" (McOwen v. Grossman (2007) 153 Cal.App.4th 937, 947 (McOwen)), and to the extent that a party's argument is thereafter unsupported by sufficient facts, we deem the argument to be forfeited (Stover v. Bruntz (2017) 12 Cal.App.5th 19, 28 (Stover)). Notably, where evidence is necessary to establish a fact, a record reference to an unsworn written or oral statement—even from counsel or a party—is insufficient. (In re Zeth S. (2003) 31 Cal.4th 396, 413-414, fn. 11 (Zeth S.) [statements, including arguments, in briefs are not evidence]; Villacorta v. Cemex Cement, Inc. (2013) 221 Cal.App.4th 1425, 1433 [statements at oral argument are not evidence].)
While these basic rules of appellate procedure apply to all parties,
In the first, third, fourth, and fifth causes of action of her cross-complaint, Wilson alleges that Greg Cobb, Matt Van Houten, Carleen Berry, and Nicole Taylor, respectively, defamed Wilson. The claims all relate to statements the cross-defendants allegedly made about Wilson and her behavior at or related to her children's scouting or sporting activities.
During the summer of 2013, Wilson's and Cobb's sons, members of the same Boy Scouts troop, attended a week-long scouting camp—Camp Whitsett in the Los Angeles area. Cobb, a registered adult leader and assistant scoutmaster for the troop, organized and led the activity; and Wilson attended as a parent. In total, there were approximately 20 boys and six adults from the troop who attended Camp Whitsett.
One evening in the camp's cafeteria line, there was an incident that resulted in commotion regarding one of Wilson's sons. At the time, there was no indication that anyone had been hurt. From what Cobb had seen, the behavior was normal age-appropriate horseplay. As it affected Wilson's son, Cobb learned that another scout had pulled her son's hatstring. Nonetheless, according to Cobb, later in the week, Wilson told him that her son had been injured during the incident, and she became very vocal, criticizing troop leadership and insisting that the scout who had pulled her son's hatstring had not been properly punished for his participation. Although Wilson did not observe the incident and contends she did not mention it during the week at camp, in her cross-complaint, Wilson alleges that her "son was injured by said boy at camp."
After returning from Whitsett, on or about July 25, 2013, Cobb and three other adult troop leaders—including Nick Gizzi, the troop's charter representative and liaison with the troop's sponsoring church—met to discuss certain events that occurred at camp. At least in part, the meeting was called at Wilson's insistence as a result of the above-described injury she claimed one of her sons had suffered at camp. Cobb participated in the meeting as one of the leaders of the troop (and of the camp event, in particular), since claims by a parent that a child had been injured were taken very seriously by troop leadership.
At the July 2013 meeting, Cobb described to the other three troop leaders what he had observed in the line at the camp cafeteria. This meeting is the only time Cobb ever discussed the events from Whitsett involving Wilson or her son.
Within the months following July 2013, Wilson alleges that she "heard cryptic untrue rumors about her supposedly inappropriate behavior at Whitsett." Wilson further alleges that, in or around April 2014, Ken McCrobie (an adult not involved with the Boy Scouts or the camp outing) told Wilson that Berry—the mother of a boy who Wilson alleges played little league baseball with one of Wilson's sons—"was making negative comments about [Wilson's] involvement in Whitsett." (Sic.) Neither Berry nor either of her sons participated in the July 2013 Boy Scouts camping activity.
In or around June 2014, Wilson's twin daughters, Cobb's daughter, and Van Houten's daughter played on the same girls age 10 and under all-star softball team associated with the Peninsula Youth Softball Association (PYSA), a nonprofit girls fastpitch softball league. At and around that time, Van Houten was one of the coaches of the team, and Taylor was a board member and the secretary of the PYSA.
Wilson testified that, on June 9, 2014, there was an incident at the team's practice. More specifically, she declared that Veada Reed, the mother of a team member, "was badmouthing" one of Wilson's daughters to a team coach, Van Houten. Wilson complained to Taylor about this incident. In her capacity as a representative of PYSA, Taylor investigated this complaint by e-mail communications with Wilson and by speaking with Reed and Van Houten.
Reed initiated the underlying action. A copy of the complaint is not included in the record on appeal, but according to Wilson's cross-complaint, Reed sued Wilson for damages. At all times, Reed has been represented by attorney Cobb. In addition, Reed and Cobb are life partners and have a son who attended the Boy Scouts camp introduced above and a daughter who played on the PYSA girls age 10 and under all-star softball team introduced above.
In response to Reed's complaint, Wilson filed a cross-complaint for various defamation-based causes of action, naming as cross-defendants Reed, Cobb, Berry, Van Houten, and Taylor. More specifically, Wilson alleged claims for slander per quod and slander per se against Cobb based on statements he allegedly made related to the 2013 Boy Scouts camping event. Wilson alleged a claim for slander per se against Berry based on statements she allegedly made at a 2014 Boy Scouts event related to an incident in the parking lot at a high school boys baseball practice. Wilson alleged claims for slander per quod and libel per se against Van Houten, and Taylor, respectively, based on statements allegedly made by each of these cross-defendant at or related to a June 2014 girls softball practice. We will discuss the specifics of the alleged defamatory statements as we review the trial court's rulings in the Discussion, post.
Wilson filed her cross-complaint in August 2016. At a case management conference on the same date—at which Cobb was representing Reed on her complaint—the trial court stayed Wilson's pending discovery on her complaint, including depositions of Reed and Cobb, since Wilson had by then made Cobb (Reed's attorney) a party to the litigation.
By the time of the next case management conference the following month, Wilson had not effected service of the cross-complaint. At the September 2016 conference, Cobb agreed to accept service on behalf of Reed and himself. The trial court then continued the discovery stay for another 30 days, expressly for the purpose of giving Cobb the opportunity to decide whether to retain counsel or represent himself in response to the cross-complaint, setting a further case management conference approximately 30 days later. Finally, in order to preserve the order of discovery requested by Wilson prior to the stay, the court set specific dates and times less than six weeks later in mid-October 2016 for the depositions of Reed and Cobb.
By the time of the continued case management conference in October 2016, Cobb and Reed had each filed a section 425.16 anti-SLAPP motion to strike the cause of action that Wilson alleged against each in her cross-complaint. At the conference, the court continued the stay on discovery—this time as mandated by section 425.16, subdivision (g)
Wilson effected service of the cross-complaint on the remaining three cross-defendants (Berry, Van Houten, and Taylor), each of whom responded by filing a section 425.16 anti-SLAPP motion to strike the cross-complaint.
Wilson filed an opposition to each of the four anti-SLAPP motions, and each cross-defendant filed a reply to the applicable opposition.
The trial court heard oral arguments on separate dates in March 2017 and June 2017 and filed the following orders and judgments related to the motions:
Wilson timely appealed from the March 24, 2017 judgment (Van Houten), the April 6, 2017 judgment (Taylor), and the June 16, 2017 order of dismissal (Cobb and Berry).
Prior to reaching the substantive issues Wilson raises with regard to the four anti-SLAPP motions, we will first consider Wilson's request that we take additional evidence and make factual findings on appeal and then consider Wilson's argument that the trial court erred in managing discovery prior to hearing the anti-SLAPP motions.
As part of her opening brief, Wilson asks the court to accept new evidence and to make additional factual findings, citing section 909.
Procedurally, Wilson did not file either a motion or the proposed findings, as required by rule 8.252(b).
Substantively, the power to take new evidence make factual determinations on appeal under section 909 and rule 8.252(b) & (c) lies within the discretion of the appellate court. (Replogle v. Ray (1941) 48 Cal.App.2d 291, 311.) This power "should be exercised sparingly" (Zeth S., supra, 31 Cal.4th at p. 405) and only in "exceptional circumstances" (Bombardier Recreational Products, Inc. v. Dow Chemical Canada ULC (2013) 216 Cal.App.4th 591, 605). Even then, the proposed new evidence must enable the appellate court to finally resolve the dispute underlying appeal, either by affirming or by reversing with directions to enter a judgment in favor of the appellant. (Tupman v. Haberkern (1929) 208 Cal. 256, 269; Smith v. Smith (1955) 135 Cal.App.2d 100, 108.) Initially, Wilson has not told us what the proposed new evidence is or how it may affect the trial court's rulings on appeal. In any event, given the record in the appeal and her briefing, Wilson is not relying on this new evidence to obtain an affirmance, and no other ruling will finally resolve her cross-complaint.
Wilson argues that the trial court erred in temporarily staying discovery at the August 2016 case management conference and continuing the temporary stay at the September 2016 case management conference.
The premise for Wilson's entire eight-page argument is that "there is no dispute that Wilson properly served deposition and request for production subpoenas on Cobb and Reed." However, the standard is not whether a party states there is no dispute as to an issue, but whether the party cites to evidence in the record that there is no dispute. (Rule 8.204(a)(1)(C).) Here, not only has Wilson failed to provide a record reference for her statement, our independent review of the record—which we are not required to perform (Multani, supra, 215 Cal.App.4th at p. 1458)—confirms that there is no evidence of either the discovery requests or their service. Indeed, from our review of the reporter's transcripts of the two case management conferences at which Wilson raised issues regarding the stay of discovery, there is no indication that Wilson had presented this evidence to the trial court.
Accordingly, we disregard Wilson's unsupported statement (McOwen, supra, 153 Cal.App.4th at p. 947) and deem Wilson to have forfeited her argument based on allegedly outstanding discovery (Stover, supra, 12 Cal.App.5th at p. 28).
Even if we were to reach the merits of Wilson's argument, the result would be no different. We review for an abuse of discretion the trial court's management of discovery, remaining "`highly deferential to the trial court'" on these matters. (Moore v. Mercer (2016) 4 Cal.App.5th 424, 447.) Under this standard, we must determine "`whether the trial court exceeded the bounds of reason.'" (Mercury Ins. Group v. Superior Court (1998) 19 Cal.4th 332, 349; Bank of America, N.A. v. Superior Court (2013) 212 Cal.App.4th 1076, 1089 [review of discovery order].)
In managing discovery, the trial court's determination will be set aside "`"only when it has been demonstrated that there was `no legal justification' for the order granting or denying the discovery in question."'" (Lickter v. Lickter (2010) 189 Cal.App.4th 712, 740 (Lickter), quoting in part Carlson v. Superior Court (1961) 56 Cal.2d 431, 438.) Here, Wilson did not meet her burden of establishing error. The brief discretionary stay of discovery (prior to the mandatory statutory stay upon the filing of the first anti-SLAPP motion) did not exceed the bounds of reason; the court was legally justified in allowing Cobb and Reed time to decide whether Cobb would continue to represent Reed, especially since Wilson was singularly responsible for having changed Cobb's status from a percipient witness (and counsel to Reed) to a party cross-defendant.
Additionally, Wilson must show not only that the trial court erred, but also that the error was prejudicial, resulting in a miscarriage of justice. (Cal. Const., art. VI, § 13; § 475; Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800-802; Lickter, supra, 189 Cal.App.4th at p. 740 [order denying discovery].) Under this standard, Wilson is required to say more than she was unable to get witnesses to commit to specific dates and times of events. She is required to establish "`it is reasonably probable'" that the trial court would not have granted the anti-SLAPP motions had the court not stayed discovery during the approximately seven weeks from the date on which Wilson named Cobb as a party (Aug. 5, 2016) until the date on which the first anti-SLAPP motion was filed and a statutory stay took effective (Sept. 22, 2016). (Cassim, at p. 800, quoting People v. Watson (1956) 46 Cal.2d 818, 836.)
On appeal, Wilson does not attempt to establish the reasonable probability of a different result on the anti-SLAPP motions, arguing only that, due to the stay, she was prejudiced by not being able to conduct the discovery she had noticed—discovery that is not in the record on appeal. In fact, however, even if we assume that she suffered the requisite prejudice (and established the reasonable probability of different rulings on the anti-SLAPP motions), the result would be no different. To the extent Wilson was unable to present evidence that she believed she could have obtained at a deposition of Cobb or Reed, the trial court's discretionary stay was not the cause. Wilson's failure to timely bring a motion to lift the statutory stay in order to conduct discovery in response to the anti-SLAPP motions—despite the court having previously authorized the discovery and given Wilson a hearing date for the motion—was the sole cause of Wilson's inability to conduct the depositions on the schedule Wilson intended.
We will first discuss the law and then apply the law to the statements Wilson alleges in her cross-complaint to be defamatory. As we explain, Wilson did not meet her burden of establishing reversible error.
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." (Italics added.) Subdivision (e) describes four types of acts in furtherance of a person's constitutional rights that are subject to the anti-SLAPP statute. As applicable here, the above-quoted italicized language in subdivision (b)(1) means "in connection with a public issue or an issue of public interest" as set forth in subdivision (e)(4).
In applying section 425.16, subdivision (b)(1), 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." (Baral, supra, 1 Cal.5th at p. 384; see Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1251 [moving party has the burden on the first prong].) "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." (Baral, at p. 384; see Jackson, at p. 1251 [opposing party has the burden on the second prong].)
To meet this latter burden, the party opposing the motion must establish that the elements of the challenged claim(s) are "`supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the [party opposing the motion] is credited.'" (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820 (Oasis West Realty).) In making this showing, the party opposing the motion cannot rely solely on the allegations in the complaint, but must present evidence that would be admissible at trial. (Alpha and Omega Development, LP v. Whillock Contracting, Inc. (2011) 200 Cal.App.4th 656, 664 (Alpha and Omega).)
"`Only a [claim] 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, supra, 51 Cal.4th at p. 820.)
We review de novo the denial of an anti-SLAPP motion. (Oasis West Realty, supra, 51 Cal.4th at p. 820.) In considering the pleadings and declarations, we do not make credibility determinations or compare the weight of the evidence; rather, we accept as true the opposing party's evidence and evaluate the moving party's evidence only to determine if it has defeated the opposing party's evidence as a matter of law. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)
In general, all four cross-defendants rely on the same arguments for the assertion that their alleged acts were in further of their constitutional right of free speech in connection with a public issue. They contend that the challenged speech is in connection with the public issue of child safety in the context of either problem parents in youth sports/activities or an ongoing investigation or controversy based on problem parents in youth sports/activities.
Although section 425.16 does not provide a definition for the term "issue of public interest," it is to be "construed broadly in the anti-SLAPP context"—i.e., "`any issue in which the public is interested.'" (Daniel v. Wayans (2017) 8 Cal.App.5th 367, 386.) In Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107 (Du Charme), for example, the court held that in order to satisfy the "public issue/issue of public interest" requirement of subdivision (e)(4), "in cases where the issue is not of interest to the public at large, but rather to a limited, but definable portion of the public (a private group, organization, or community), the constitutionally protected activity must, at a minimum, occur in the context of an ongoing controversy, dispute or discussion, such that it warrants protection by a statute that embodies the public policy of encouraging participation in matters of public significance." (Du Charme, at p. 119, first italics added.) As applicable here, "the public interest may extend to statements about conduct between private individuals." (Chaker v. Mateo (2012) 209 Cal.App.4th 1138, 1145.)
In Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450 (Hecimovich), the terminated volunteer coach of a fourth grade afterschool sports team sued the school's parent-teacher organization and three other volunteers, alleging a number of causes of action including defamation. (Id. at pp. 454-455.) The appellate court described the background that led to the allegedly defamatory communications as "the conduct of a kid on a fourth grade basketball team, his parents' and his coach's reactions to it, and the ultimate resolution of the situation." (Id. at p. 456.) The defendants filed an anti-SLAPP motion, arguing that, as relevant here, the claims were made in connection with an issue of public interest (§ 425.16, subd. (e)(4)), since they "involved communications between a parent-teacher organization and parents concerning plaintiff's coaching of young children." (Id. at p. 457.)
The Court of Appeal reversed the trial court's denial of the defendants' motion, holding that "safety in youth sports, not to mention problem coaches/problem parents in youth sports, is another issue of public interest within the SLAPP law." (Hecimovich, supra, 203 Cal.App.4th at p. 468, italics added.) We agree with the view expressed by the Third District's recent statement that the above-quoted holding in Hecimovich" fit[s] within Du Charme's definition of a public issue. The issue—plaintiff's ability to coach young children and keep them safe—interested a definable portion of the public (the parents and the program's organizers and sponsors) and occurred in the context of an ongoing controversy where public participation should be encouraged." (Baughn v. Department of Forestry and Fire Protection (2016) 246 Cal.App.4th 328, 339 (Baughn), citing Hecimovich, at p. 468, and Du Charme, supra, 110 Cal.App.4th at p. 119 [quoted ante].)
Hecimovich, supra, 203 Cal.App.4th at pages 466-467 relied on Terry v. Davis Community Church (2005) 131 Cal.App.4th 1534 (Terry), which involved a confidential report that followed an investigation prompted by a formal complaint that two adult church youth group leaders had engaged in an inappropriate sexual relationship with a minor as part of their youth group activities. (Id. at pp. 1538-1539.) After describing why the investigation was conducted and its results, the report concluded that both of the youth group leaders exhibited gross misconduct, negligence, and insubordination, to the detriment of at least one youth group member, resulting in the leaders' resignation and removal from contact with all youth group members. (Id. at p. 1542.) The report was discussed and copies were distributed (and returned) at closed administrative sessions and two open meetings of youth group parents; in all, approximately 100 people saw the report. (Id. at p. 1543.) The youth group leaders sued the church and its pastor and various leaders for, inter alia, defamation—namely, libel as a result of allegedly defamatory statements in the written report, which described written communications and physical contact with a specific youth group member, and slander as a result of the defendants having repeated the contents of the report and having used pejorative terms (e.g., "`liars'" and "`delusional'") to describe the youth group leaders. (Id. at pp. 1539-1542.)
The appellate court affirmed the trial court's grant of the defendants' anti-SLAPP motion. (Terry, supra, 131 Cal.App.4th at p. 1559.) With regard to the prong one analysis, for purposes of section 425.16, subdivision (e), the Court of Appeal concluded that the claims were made "in connection with a public issue or an issue of public interest" (id., subd. (e)(4)), because the communications "involved the societal interest in protecting a substantial number of children from predators." (Terry, at p. 1547.) More specifically, "the broad topic of the report and the meetings was the protection of children in church youth programs"—"an issue of public interest." (Id. at p. 1548.) Relying on "`the public policy of encouraging participation in matters of public significance,'" the court had no difficulty concluding that "the protection of children passes the threshold level of significance" for SLAPP purposes. (Id. at p. 1549.) The court then ruled that, because this publicly significant activity "`occur[red] in the context of an ongoing controversy, dispute, or discussion,'" the communications at issue were constitutionally protected and, thus, the claims were subject to the anti-SLAPP statute. (Ibid., quoting Du Charme, supra, 110 Cal.App.4th at p. 119.)
In our de novo review of Wilson's defamation claims, we must "consider the elements of the challenged claim and what actions by the [cross-]defendant supply those elements and consequently form the basis for liability." (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1063.) Since Wilson has asserted various defamation claims against the cross-defendants, we will first discuss generally the law of defamation.
"Defamation constitutes an injury to reputation; the injury may occur by means of libel or slander."
After returning home from the Boy Scouts camp where Wilson claims one of her sons had been injured, there was a meeting at which the troop leaders met to discuss complaints, including the incident. In her cross-complaint, Wilson alleges that, as part of this "investigation," Cobb (the troop's assistant scoutmaster who organized and led the camp activity) made the following slanderous statements to Gizzi (the troop's charter representative and liaison with the troop's sponsoring church):
As we explain, in response to these allegations, Cobb sufficiently met his prong one burden; i.e., he established that the foregoing statements implicated constitutionally protected activity—i.e., were made "in connection with . . . an issue of public interest" (§ 425.16, subd. (e)(4))—for purposes of applying the anti-SLAPP statute. As we further explain, Wilson did not meet her prong two burden of establishing the merit of the claim by demonstrating a probability of prevailing.
On appeal, Wilson argues that the trial court erred in concluding that Cobb had met his burden on prong one, because Cobb's defamatory statements were not made in connection with a public issue for purposes of section 425.16, subdivisions (b) & (e)(4). We disagree.
Based on at least two independent authorities, the allegedly defamatory statements were made in connection with an issue of public interest. First, under Hecimovich, supra, 203 Cal.App.4th 450, the allegedly defamatory statements by Cobb concerned parental overreaction occurring in response to an incident at the Boy Scouts event. Thus, they were made in connection with what Hecimovich holds is an "issue of public interest within the SLAPP law"—namely, "problem parents in youth [activities]." (Id. at p. 468.) Second, the allegedly defamatory statements by Cobb were made during the post-camping investigation into Wilson's son's alleged injury at the youth activity.
Wilson argues that, because the discussion was between Cobb and Gizzi, two adults talking about adult behavior, the safety or well-being of children was not involved. We disagree. Overreaction to children's horseplay and the loss of control and yelling in front of the children (i.e., the first and third allegedly defamatory statements) both involve child safety as a result of problem parents; and all three allegedly defamatory statements were made as part of Cobb's participation in an ongoing controversy, dispute, or discussion concerning the safety of a child at the youth activity.
Moving on to prong two, we conclude that Wilson did not demonstrate a probability of success on the claims for at least two independent reasons.
First, Wilson did not establish that Cobb made any of the three allegedly slanderous statements. In her cross-complaint, Wilson alleges that the statements were made to Gizzi only, and the trial court sustained Cobb's hearsay objection to Wilson's evidence of these statements. A party opposing an anti-SLAPP motion who does not present evidence of her prima facie case has not met her burden. (Alpha and Omega, supra, 200 Cal.App.4th at p. 664.) Thus, unless the trial court erred in sustaining Cobb's evidentiary objection to the evidence of the statements, there is no evidence in the record to support the allegations that Cobb said anything to Gizzi, let alone anything defamatory. On appeal, Wilson does not suggest, let alone establish, that the trial court erred in its evidentiary rulings.
Second, even if we assume that Wilson had presented evidence of the allegedly defamatory statements, the result would be no different. Cobb argues, the trial court ruled, and we agree that the statute of limitations bars Wilson's claim. The statute of limitations for Wilson's slander claims is one year (§ 340, subd. (c)), and Wilson filed her cross-complaint on August 5, 2016. Thus, unless Cobb made the statements after August 5, 2015, or the statute is tolled, the claim is time-barred.
From admissible evidence in Wilson's and Cobb's declarations, we know that the communications occurred well prior to August 2015: Wilson testified that the Boy Scouts camp took place in July 2013, and "[w]ithin a few weeks of returning from [Camp] Whitsett," there was a meeting with troop leaders to review complaints; and, consistently, Cobb testified that the only meeting at which he would have mentioned the camp incident involving Wilson's son occurred in late July 2013.
Aware of this timing, Wilson argues that, due to her delayed discovery of the facts, her claims did not accrue until December 2015. We are not convinced.
Wilson alleges that she did not "become aware of the extent of the defamatory statements" until a specified event on December 2, 2015.
Given these allegations (and the assumption that Wilson has evidence to support them), based on the following discussion of the doctrine of delayed discovery, Wilson's lack of knowledge of the extent of the defamatory statements is insufficient to delay discovery of the claim until December 2015. The statute of limitations on Wilson's defamation claims against Cobb began to run no later than the April 2014 date alleged in the cross-complaint.
The delayed discovery rule "postpones accrual of a cause of action until the [claimant] discovers, or has reason to discover, the cause of action." (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397.) Under this rule, "the [claimant] discovers the cause of action when he at least suspects a factual basis, as opposed to a legal theory, for its elements, even if he lacks knowledge thereof—when, simply put, he at least `suspects . . . that someone has done something wrong' to him." (Ibid., italics added.) "A [claimant] need not be aware of the specific `facts' necessary to establish the claim; that is a process contemplated by pretrial discovery. Once the [claimant] has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights. So long as a suspicion exists, it is clear that the [claimant] must go find the facts; she cannot wait for the facts to find her." (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1111 (Jolly).) Because accrual of a cause of action is delayed under the discovery rule until the claimant discovers, or has reason to discover, the cause of action, "the limitations period begins once the [claimant] `"`has notice or information of circumstances to put a reasonable person on inquiry.'"'" (Id. at pp. 1110-1111.)
Even though the claimant's ignorance of the existence of an injury or a claim may toll the running of the statute of limitations until the date of discovery, as specifically applicable here, "ignorance of the identity of the [responsible party] is not essential to a claim and therefore will not toll the statute. . . . Aggrieved parties generally need not know the exact manner in which their injuries were `effected, nor the identities of all parties who may have played a role therein.'" (Bernson v. Browning-Ferris Industries (1994) 7 Cal.4th 926, 932 (Bernson), italics added.)
For the foregoing reasons, Wilson did not meet her burden of establishing a probability of success in the trial court, and she did not attempt on appeal to show that the trial court erred in so ruling.
In her cross-complaint, Wilson alleges that, at a Boy Scouts function (unrelated to July 2013 Camp Whitsett activity), Berry slandered Wilson by telling two parents:
As we explain, the anti-SLAPP statute precludes these claims under the same analysis that applied to the claims against Cobb: Berry met her burden of establishing that the allegedly defamatory statements implicated constitutionally protected activity; and Wilson did not meet her burden of establishing the probability of success on the claim.
For purposes of the first prong of the analysis, the alleged statements were made in connection with an issue of public interest. (§ 425.16, subd. (e)(4).) Under Hecimovich, supra, 203 Cal.App.4th 450, the first two statements deal with safety at organized events for youths; i.e., the statements warn certain parents about a problem parent who endangered those present at a little league event. (Id. at p. 468.)
We disagree with Wilson's suggestion that "this dispute is solely between adults." (Bolding omitted.) The evidence is that Wilson's alleged vehicular assault took place just as Berry's son got out of Berry's vehicle and Wilson's son got out of Wilson's vehicle, while Wilson was maneuvering her car "so quickly it threw her own son off balance getting out of her car." We view the potential effect of the alleged verbal assault the same: The problem parent's comments do not have to be directed to the children; the children's presence at an organized youth activity is what makes their protection an issue of public interest. Under Terry, supra, 131 Cal.App.4th 1534, the third statement is also an issue of public interest, because it occurred in the context of the ongoing controversy and discussion about the safety and protection of the children at the Boy Scouts camping event. (Id. at p. 1549; accord, Baughn, supra, 246 Cal.App.4th at p. 339.)
For purposes of the second prong analysis, as with the claims against Cobb, on at least two bases, Wilson did not meet her burden of establishing that the trial court erred in concluding that she had not demonstrated a probability of prevailing on her cause of action for slander against Berry.
First, in the trial court, Wilson did not present any evidence that Berry made any of the allegedly defamatory statements. Accordingly, she did not meet her initial burden under the second prong. (Alpha and Omega, supra, 200 Cal.App.4th at p. 664 [to meet prong two requirement, party opposing an anti-SLAPP motion must present evidence of a prima facie case].)
On appeal, Wilson refers us to what she describes as Cobb's "`Grace Notes'" and argues that, based on these notes, "[i]t is uncontested" that the statements at issue "are about Wilson." This presentation is not a sufficient prima facie showing for at least the following reasons: (1) the issue is not about whom the statements were made (Wilson), but who made the statements (Berry); (2) because Wilson provides no record references for the full typewritten page of statements, including quotations, we disregard the statements (McOwen, supra, 153 Cal.App.4th at p. 947), even if this results in Wilson's forfeiture of the argument for lack of evidence (Stover, supra, 12 Cal.App.5th at p. 28); (3) because Wilson did not present this fact-based argument to the trial court, she forfeited it (Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334, 1350, fn. 12
Likewise, Wilson's reliance on appeal on a declaration from one of her daughters to support Wilson's claim against Berry is misplaced for the following reasons: (1) because Wilson did not submit the child's declaration, and thus the evidence on which she relies, in opposition to Berry's motion in the trial court, she forfeited consideration of the related argument in the first instance on appeal (Cable Connection, Inc., supra, 44 Cal.4th at p. 1350, fn. 12); (2) although the child testified that she went to all of her brother's baseball practices and games with her mother during 2014, the child does not testify that she saw everything her mother did with the car or heard everything her mother said to others at these sporting events; and, (3) most importantly, the child did not testify to having heard Berry communicate any of the allegedly defamatory statements—i.e., the principal element of Wilson's defamation claims against Berry.
Second, Wilson failed to defeat Berry's reliance on section 340.6, subdivision (c)'s one-year statute of limitations defense for slander.
First, in her August 2016 cross-complaint, Wilson affirmatively alleges that she "ha[s] suffered actual damages" as a result of Berry's slander "for the last 2 years"—i.e., since at least August 2014. This is consistent with Wilson's March 2014 e-mail to Berry (copied to numerous others) in which Wilson accused Berry of "telling people that I caused trouble at Whitsett" and Wilson's allegation that, in or about April 2014, a parent told Wilson that Berry was making negative comments about Wilson's behavior at the Boy Scouts camp.
As we introduced ante, a "suspicion of wrongdoing," not the facts to support the truth, commences the limitations period. (Jolly, supra, 44 Cal.3d at p. 1111.) The aggrieved party need not know either the exact manner in which she was injured or the identity of the potentially responsible party. (Bernson, supra, 7 Cal.4th at p. 932.) Thus, here, because Wilson believed that Berry had been saying negative things about her since at least March 2014 and alleges that she suffered actual damages as a result of Berry's slander as of at least August 2014, the one-year statute of limitations on Wilson's claim against Berry for slander commenced no later than mid-2014—which is more than one year prior to the filing of the cross-complaint in August 2016.
For the foregoing reasons, Wilson did not meet her burden of establishing that the trial court erred in concluding that she failed to demonstrate a probability of prevailing on her cause of action for slander against Berry.
In the third cause of action of her cross-complaint, Wilson alleges that Van Houten slandered her following the incident at the June 9, 2014 girls softball practice at which Wilson alleges that "Reed was `bad mouthing' [Wilson's] girls" to Van Houten, who was the team coach at the time. More specifically, Wilson alleges that, later in June 2014:
As we explain, Van Houten met his burden of establishing that the allegedly defamatory statements implicated constitutionally protected activity, and Wilson did not meet her burden of establishing a probability of success on the merits.
For prong one purposes, both statements were made in connection with a public issue for purposes of section 425.16, subdivisions (b) & (e)(4).
For the same reason that Cobb's and Berry's alleged statements were in furtherance of their respective constitutional right of free speech under Hecimovich, supra, 203 Cal.App.4th 450, so too is the first statement that Wilson attributes to Van Houten. By describing volatile and physically combative behavior by Wilson at the girls softball practice, Van Houten's alleged statement falls squarely within Hecimovich's holding—namely, that "safety in youth sports," which expressly includes "problem parents in youth sports, is another issue of public interest within the SLAPP law." (Id. at p. 468.)
In addition, under Terry, supra, 131 Cal.App.4th 1534, both alleged statements were made in connection with an issue of public interest for purposes of applying the anti-SLAPP statute, because both statements involved the protection of children at an organized youth event and occurred in the context of an ongoing controversy, dispute, or discussion. (Id. at p. 1549; see Baughn, supra, 246 Cal.App.4th at p. 339; Du Charme, supra, 110 Cal.App.4th at p. 119.) Here, to the extent Van Houten made any comments about Wilson and her behavior and actions at the June 9, 2014 softball practice, he made them to Taylor, who in her capacity as PYSA secretary, had contacted Van Houten "to investigate the matter due to a complaint that . . . Wilson had made to her."
With regard to the second prong, based on the one-year statute of limitations for slander (§ 340, subd. (d)) and the present record, Wilson did not meet her burden of demonstrating a probability of success on the merits of her claim against Van Houten.
In her August 2016 cross-complaint, Wilson alleges that she has suffered actual damages "for the last 2 years" (i.e., since Aug. 2014) as a result of Van Houten's slander. The evidence confirms that, in June 2014: Wilson knew what (she believed) Reed said to Van Houten; as a result, Wilson asked Taylor to investigate; Taylor investigated; and, during Taylor's June 2014 investigation, Van Houten told Taylor his recollection of the June 9 incident between Reed and Wilson. These facts not only support Wilson's "suspicion of wrongdoing" sufficient to commence the statute of limitations (Jolly, supra, 44 Cal.3d at p. 1111), they also establish Wilson's actual knowledge of the alleged wrongdoing—i.e., lies about her behavior at the softball practice. There is no requirement that Wilson first find out the identities of the potentially responsible parties or the exact statements they made (Bernson, supra, 7 Cal.4th at p. 932). Accordingly, the one-year statute of limitations on Wilson's claim against Taylor for slander commenced no later than mid-2014—which is more than one year prior to the filing of the cross-complaint in August 2016.
For the foregoing reasons, Wilson did not meet her burden of establishing that the trial court erred in concluding that she had not demonstrated a probability of prevailing on her cause of action for slander against Taylor.
Wilson alleges that Taylor, a PYSA board member, libeled Wilson following Taylor's PYSA investigation of Wilson's complaint against Reed based on the June 9, 2014 incident at the girls softball practice. More specifically, Wilson alleges that, on September 15, 2015, Taylor, as secretary of the PYSA league, sent an e-mail to the PYSA league president, with copies to other PYSA board members, stating as follows:
As we explain, Taylor met her prong one burden to establish that the foregoing statement was communicated in connection with a public issue for purposes of applying the anti-SLAPP statute, yet Wilson did not meet her prong two burden to establish the merits of her claim.
For purposes of our prong analysis, we agree with Taylor that the above-quoted e-mail to the PYSA board is a communication regarding an ongoing issue of public interest made to a limited but distinct group of people. (See Du Charme, supra, 110 Cal.App.4th at p. 119; Baughn, supra, 246 Cal.App.4th at p. 339.)
Wilson argues that the e-mail does not deal with a Hecimovich-like situation, because there is nothing in the e-mail related to child safety. While she may be correct in the abstract, we are not dealing with three abstract sentences. To determine whether constitutionally protected activity occurred, we must determine whether these statements were made "in the context of an ongoing controversy where public participation should be encouraged." (Baughn, supra, 246 Cal.App.4th at p. 339; accord, Du Charme, supra, 110 Cal.App.4th at p. 119.) To this end, Terry, supra, 131 Cal.App.4th 1534, teaches that the protection of children is of sufficient public significance for anti-SLAPP purposes and that where this publicly significant activity occurs in the context of an ongoing controversy under investigation, the communications are constitutionally protected and, thus, subject to being stricken under the anti-SLAPP statute. (Id. at p. 1549.)
Here, we are dealing with the results of a formal investigation (commenced at Wilson's insistence) based on the June 9, 2014 incident at the softball practice that we have already concluded involved a threat to safety at a youth activity resulting from the behavior of a problem parent. (See pts. III.C.2.a.-c., ante.) Thus, we have no difficulty concluding that the communications Wilson attributes to Taylor were made in the context of an ongoing controversy in which public participation should be encouraged.
As such, Taylor met her prong one burden of establishing that the alleged communications were made in connection with a public issue, which subjects the statements to being stricken under section 425.16.
On appeal, Wilson attempts to establish the merit of her libel claim by presenting two arguments—both directed only to the middle sentence in Taylor's e-mail, which reads, "This is the fourth or fifth time [Wilson] has attacked someone in a public forum with `information' which is character defamation." First, Wilson contends that this sentence is provably false. Second, she argues that the statement, even if considered in part an opinion, is actionable as a statement of fact.
The problem with Wilson's presentation is that her arguments do not sufficiently respond to the trial court's ruling—which was based on an argument presented by Taylor—that, for prong two purposes, the statements in Taylor's e-mail are privileged:
Accordingly, Wilson did not meet her burden of establishing trial court error (see Denham, supra, 2 Cal.3d at p. 564) in ruling that she failed to establish the probability of success on the merit of her libel claim against Taylor.
The March 24, 2017 judgment (in favor of Van Houten and against Wilson), the April 6, 2017 judgment (in favor of Taylor and against Wilson), and the June 16, 2017 order granting anti-SLAPP motions (in favor of Cobb and Berry and against Wilson) are each affirmed. After issuance of the remittitur, upon a proper showing in the superior court, Berry, Van Houten, and Taylor are each entitled to an award of attorney fees on appeal, pursuant to section 425.16, subdivision (c)(1).
HUFFMAN, Acting P. J. and AARON, J., concurs.
"`SLAPP' is an acronym for `strategic lawsuit against public participation'" (Baral v. Schnitt (2016) 1 Cal.5th 376, 381, fn. 1 (Baral))—which is litigation "brought to challenge the exercise of constitutionally protected free speech rights" (Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 196). The anti-SLAPP statute "provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity." (Baral, at p. 384; see § 425.16, subd. (a).)
"Slander is a false and unprivileged publication, orally uttered, . . . which: [¶] . . . [¶] 3. Tends directly to injure [the claimant] in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits; [or] [¶] . . . [¶] 5. Which, by natural consequence, causes actual damage." (Civ. Code, § 46.)
