Salazar v. Whelan

1

ROBERT SALAZAR et al., Plaintiffs and Respondents, v. BRIAN WHELAN et al., Defendants and Appellants.

F083825

California Court of Appeals, Fifth District

May 15, 2023

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Fresno County. No 21CECG02710 Kimberly A. Gaab, Judge.

Lewis Brisbois Bisgaard &Smith, Raul L. Martinez, David D Samani and Alex A. Graft for Defendants and Appellants.

One and Joanna Ardalan for Plaintiffs and Respondents. -ooOoo-

OPINION

HILL P. J.

Defendants in this defamation suit appeal the trial court's order denying their special motion to strike plaintiffs' complaint under Code of Civil Procedure section 425.16,^[1] the anti-SLAPP statute. Because the trial court incorrectly determined that defendants' speech was not protected activity under section 425.16, subdivision (e)(3), we reverse.

FACTS AND PROCEDURAL HISTORY

Defendant Brian Whelan is an attorney based in Fresno, California, who was litigating two lawsuits on behalf of former employees of plaintiff Robert "Bobby" Salazar, a Central Valley restaurateur. While those employment suits were pending, Salazar and his companies (plaintiffs) brought the instant defamation suit against Whelan and his law firm (defendants) for, in Salazar's view, publicly and falsely accusing Salazar of orchestrating several retaliatory arson attacks against Whelan and two others involved in the employment lawsuits. Defendants responded by filing an anti-SLAPP motion to strike the complaint in its entirety, which the trial court ultimately denied.

Salazar's complaint alleges causes of action for defamation, false light, and intentional and negligent interference with prospective economic advantage-all arising from two sets of public statements by Whelan following the most recent arson incident. In the early morning hours of June 23, 2021, an unknown individual ignited and destroyed three cars belonging to the family of Whelan's client, Hilda Lopez, a former cook at one of Salazar's restaurants. Lopez had just sued Salazar and the restaurant (with Whelan's assistance) for alleged labor and employment law violations. In an effort to help his client and her family, on June 27, 2021, Whelan created a GoFundMe.com fundraising web page (the GoFundMe page) containing the first set of statements Salazar challenges in this suit.^[2]

GoFundMe Page Statements

Plaintiffs attached to the complaint screenshots of the GoFundMe page, including the public comments and donation tallies. The fundraiser description, written by Whelan, reads in full:

"Help Lopez Family Get Wheels - Fire Bombing Victim

"FRESNO, CALIF. On June 17, 2021, Hilda Lopez, filed a lawsuit for wrongful termination and pregnancy discrimination against Bobby Salazar, owner of the restaurant Bobby Salazar's in Fresno's Tower District.

"On Tuesday June 22, 2021, Mr. Salazar was personally served with the lawsuit. Less than nine hours later, while parked in front of their house, the three cars owned by Ms. Lopez and her family were blown up by fire bombs.

"Ms. Lopez and her husband, who together have four children including their new baby, rely on vehicles to commute and make doctor's appointments. Now, the Lopez family does not have the resources to replace the blown-up cars nor the insurance coverage to cover full replacement.

"The Lopez car-bombings are not the first incidents of fire-related crimes tied to legal actions against Mr. Salazar.

"On May 20, 2020, assailants firebombed the car of another Bobby Salazar's employee who exposed a pay-for-testimony scheme organized by Mr. Salazar in an attempt to tamper with witnesses in a separate wrongful termination lawsuit.

"Two months later, on Aug. 17, 2020, assailants attempted to fire-bomb the offices of the attorney (involved in both the Lopez lawsuit and the other wrongful termination lawsuit) with incendiary devices akin to a Molotov cocktail.

"While the Fresno Police Department, Fresno Fire Department, Federal Bureau of Investigation, and [United States] Bureau of Alcohol, Tobacco, [ ] Firearms[, and Explosives] are engaged in investigations related to all three fire-bombing incidents, the Lopez Family is in real need of immediate help to replace their cars, and if enough money can be raised, to move to safety where they will not be victimized again."

The GoFundMe page also includes photographs of Lopez and the fire-damaged cars. The fundraiser raised $6,963 from 76 donors. Plaintiffs allege a reasonable person would understand the above text "to mean that [p]laintiffs had committed a crime, specifically by car-bombing cars of at least two people and attempting to bomb an attorney['s] office."

Statements to the Press

According to the complaint, the GoFundMe page "caused a surge of media coverage," during which Whelan provided further comments, forming the second set of statements challenged in this suit. Plaintiffs attached to the complaint five online news articles from different outlets covering the attack on Lopez, her lawsuit, the series of arson incidents, and Whelan's theory that the attacks were all linked to Salazar. All of the articles feature various statements attributed to Whelan, but plaintiffs primarily object to the following one, which was repeated in similar form in each of the online news articles:

" 'Just to be clear, I'm giving the facts as they exist and people can connect the dots for themselves.' .. 'So the facts are, these series of events have taken place, associated with lawsuits that I'm involved in, and, most recently, the facts are that a lawsuit was filed and it was served on Mr. Salazar and within nine hours all three of the cars are blown up.' "

Whelan's other statements in the news articles largely mirror his statements on the GoFundMe page. We discuss certain additional examples of Whelan's statements to the press in the analysis below.

Additional Background

In support of the anti-SLAPP motion, Whelan filed a declaration providing more background on the two arson incidents preceding the destruction of the Lopezes' cars. Regarding the May 2020 incident, Whelan averred that he had been representing another former Salazar employee, Rodrigo Tovar, in a separate employment lawsuit against Salazar and the same Salazar restaurant where Lopez had worked. In April 2020, a third former employee contacted Whelan to convey that Salazar had offered her a cash payment in exchange for giving false testimony against Tovar (Whelan's client) in the civil suit. That witness executed a declaration describing her interaction with Salazar, which Whelan then transmitted to his opposing counsel. About one month later, the would-be witness's car "exploded" while parked on the street outside her residence. Regarding the August 2020 incident at Whelan's own office, Whelan averred that someone had thrown "an accelerant or Molotov Cocktail" against the window of his office, using "a similar method" as employed in the "bombing" of the Tovar witness's car.

Whelan further averred that, as of October 14, 2021 (the date of his declaration), all three arson incidents were still under investigation by the Fresno Fire Department and other authorities; and that an investigator told him in reference to the Lopez incident that" 'Bobby Salazar clearly had someone do it, he didn't do it himself.' "

In opposition to the motion to strike, Salazar filed his own declaration averring that he had never, directly or indirectly, damaged the Lopezes' cars or the car of any former employee; nor did he cause a Molotov Cocktail to explode outside Whelan's office. Salazar described "a significant drop in sales" at his businesses, which he attributed to Whelan's false statements.

The Trial Court's Tentative and Final Rulings

The trial court issued a tentative ruling on November 24, 2021, that would have granted defendants' motion. The tentative ruling reasoned both sets of statements had "some relation to judicial proceedings" by virtue of their "recitations of dates and occurrences in the various underlying actions" and therefore constituted protected activity under section 425.16, subdivision (e)(2) (section 425.16(e)(2)). The tentative ruling viewed plaintiffs as not meeting their subsequent burden to show a probability of prevailing on their causes of action.

However, after a hearing on the motion, the trial court issued a final ruling denying defendants' motion. The trial court found that Whelan's statements were not protected activity under either of the asserted categories of protection. First, the statements were irrelevant to proving or disproving the employment claims in the Lopez lawsuit and therefore were not made "in connection with an issue under consideration" in that proceeding. (§ 425.16(e)(2).) Second, Whelan's statements were not made "in connection with an issue of public interest," as provided in section 425.16, subdivision (e)(3) (section 425.16(e)(3)) because Salazar was not a public figure, and despite crime generally being a matter of public concern, there is no general right to "litigate in the press," and one cannot satisfy the first step of the anti-SLAPP statute by simply accusing the plaintiff of a crime. The court therefore did not reach the second-step analysis of whether plaintiffs showed a probability of prevailing. This appeal followed. (See § 425.16, subd. (i) [authorizing immediate appeal under § 904.1].)

DISCUSSION

I. Governing Anti-SLAPP Law

The anti-SLAPP statute authorizes a special motion to strike any cause of action "arising from any act ... 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 ., unless the court determines that the plaintiff has...