Ra v. Van Bemmel

JOSEPH RA, Cross-complainant and Respondent, v. MICHAEL VAN BEMMEL, Cross-defendant and Appellant.

B285133

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

January 7, 2019

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. SC125609)

APPEAL from an order of the Superior Court of Los Angeles County, Gerald Rosenberg, Judge. Affirmed.

Stroock & Stroock & Lavan, Arjun P. Rao and Crystal Y. Jonelis for Cross-defendant and Appellant.

Richie Litigation, Joshua G. Blum, Tanganica J. Turner and Jeffrey Elkrief for Cross-complainant and Respondent.

____________________ Michael Van Bemmel appeals from the order denying his special motion to strike under Code of Civil Procedure section 425.16 (section 425.16) directed to the cross-complaint for defamation filed against him by Joseph Ra. The trial court ruled the allegedly defamatory statements were not made in connection with a public issue or an issue of public interest and, therefore, were not protected speech activity within the meaning of section 425.16. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The O'Gara Coach Litigation and Ra's Cross-complaint

In March 2016 Marcelo Caraveo and two related limited liability companies filed a complaint, and in July 2016 a first amended complaint, against O'Gara Coach Company, LLC, Joseph Ra and several other entities asserting causes of action for fraud, conversion and unfair business practices based on their allegedly wrongful conduct with respect to Caraveo's acquisition of luxury vehicles from O'Gara Coach.

Several months later Ra, a former senior executive of O'Gara Coach, filed a cross-complaint for defamation, intentional interference with contractual relations and indemnity against O'Gara Coach, its owner Thomas O'Gara and various other individuals including Michael Van Bemmel, the western region general manager of BMW Financial Services NA, LLC, a company that provides wholesale financing services for the automobile industry.¹ Van Bemmel was named a cross-defendant only in the cause of action for defamation.

In his defamation claim Ra alleged, in part, that shortly after he was forced to resign from his position with O'Gara Coach in early 2016, the cross-defendants "all repeated the same thing: that Ra stole vehicles, stole money from O'Gara Coach, improperly rented O'Gara Coach's cars and stole the revenues from those rentals, and committed other criminal acts that resulted in both the Federal Bureau of Investigation and the Los Angeles District Attorney in search of Ra for prosecution." Ra further alleged, although Thomas O'Gara and Maureen Adford-O'Gara, on behalf of O'Gara Coach, started the false claims of theft, fraud and criminal prosecution by the FBI and the Los Angeles District Attorney, the other cross-defendants, including Van Bemmel "collude[d] with the O'Gara Defendants to ensure that Ra was removed and blackballed entirely from the ultra-luxury auto industry." The only allegedly defamatory statement attributed specifically to Van Bemmel was his purported "claim" that "Thomas O'Gara's financial downfall was the result of Ra's alleged criminal conduct." The cross-complaint does not identify anyone to whom Van Bemmel made that statement.

2. The Special Motion To Strike

a. The moving papers

Van Bemmel moved to strike Ra's cross-complaint (that is, the defamation cause of action, which named Van Bemmel as a cross-defendant) pursuant to section 425.16. Van Bemmel argued the defamatory statement alleged in Ra's claim constituted protected speech activity within the meaning of section 425.16, subdivision (e)(4), "as it stems from a matter of public interest; namely, alleged fraudulent practices of a car salesman." In his memorandum in support of the special motionto strike, Van Bemmel reiterated this point, asserting alleged fraud in connection with the sale and lease of motor vehicles "is a broad topic of public interest" and insisting "[t]here can be no doubt that alleged fraudulent practices of a car salesman impact a broad segment of society and thus relate to matters of consumer protection and public concern." Van Bemmel also noted that automobile sales are heavily regulated in California and cited a recent section 425.16 case that had found government regulation of an industry a relevant factor in determining whether a written report had been made in connection with an issue of public interest.

Van Bemmel also contended Ra could not establish a probability of prevailing on his defamation claim. He argued there was no admissible evidence Van Bemmel made any of the statements discussed in the cross-complaint,² the statement criminal conduct had been alleged against Ra was true, and the statement as to the cause of Thomas O'Gara's financial downfall was a nonactionable opinion.

b. Ra's opposition

In his opposition papers Ra disputed that the defamatory statements alleged in his cross-complaint constituted protected speech activity. Ra relied primarily on Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, a defamation action in which the defendant, an avid "token" collector, had sent letters to fellow collectors and published negative comments in a newsletter about another collector's practices, including allegations of criminalconduct. The Weinberg court held there was no issue of public interest because the dispute was essentially a private matter between two collectors, resulting in a campaign by one to discredit the other "in the eyes of a relatively small group of fellow collectors." (Id. at p. 1135.) The fact that the statements accused the plaintiff of criminal conduct did not make them a matter of public interest. (Ibid.) Similarly, Ra argued, Van Bemmel's accusations about his misconduct at O'Gara Coach related to what was in essence a private matter, of concern only to a small group of people.

Ra also argued there was a sufficient factual basis for his defamation claim. With his opposition memorandum Ra submitted declarations from Viken Chelebian, the former general manager at one of the O'Gara Coach locations, and Jonathan Bran, a former employee at another location, who both stated they had heard Van Bemmel describe Ra as a thief and that he was the cause of Thomas O'Gara's financial ruin. These statements, Ra asserted, were false or, if considered opinion, implied provably false facts.

c. Van Bemmel's reply

Van Bemmel's reply memorandum repeated his argument the allegedly defamatory statements were made in connection with an issue of public interest because they implicated consumer protection in the heavily regulated automobile sales industry, rather than the "fringe topic of token collecting" at issue in Weinberg v. Feisel, supra, 110 Cal.App.4th 1122. Van Bemmel also analyzed the allegedly defamatory statements as described in the Chelebian and Bran declarations and explained the onlystatements properly attributed to him were plainly nonactionable opinion and were not, in any event, false.³

3. The Trial Court's Order Denying the Motion

At the hearing on Van Bemmel's special motion to strike on July 20, 2017, the trial court read its tentative ruling denying the motion, heard oral argument and took the matter under submission. Later the same day the court entered its order denying the motion.⁴ The court explained, "The alleged defamatory statements pertain to O'Gara's financial ruin and Ra's character and performance of his job. The statements allege criminal conduct in Ra's work as an employee of O'Gara. These statements are not an issue of public interest." The court cited in support of its ruling Weinberg v. Feisel, supra, 110 Cal.App.4th at page 1127.

DISCUSSION

1. Section 425.16: The Anti-SLAPP Statute⁵

Section 425.16 provides, "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 California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1).)

Pursuant to subdivision (e), an "'act in furtherance of a person's right to 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." (§ 425.16, subd. (e).)

Section 425.16 does not define "public issue" or "public interest" as used in subdivision (e)(4), and those terms are "'inherently amorphous and thus do not lend themselves to a precise, all-encompassing definition.'" (Healthsmart Pacific, Inc. v. Kabateck (2016) 7 Cal.App.5th 416, 428; accord, MMM Holdings, Inc. v. Reich (2018) 21 Cal.App.5th 167, 179.) Nonetheless, "public interest" is to be broadly construed (see, e.g., Dual Diagnosis Treatment Center, Inc. v. Buschel (2016) 6 Cal.App.5th 1098, 1104; Du Charme v. International Brotherhood of Electrical...