D.C. v. R.R.

• Decision Date: 15 March 2010
• Docket Number: No. B207869.,B207869.
• Citation: 182 Cal.App.4th 1190
• Court: California Court of Appeals Court of Appeals
• Parties: D.C., a Minor, etc., et al., Plaintiffs and Respondents, v. R.R., a Minor, etc., et al., Defendants and Appellants.

182 Cal.App.4th 1190

D.C., a Minor, etc., et al., Plaintiffs and Respondents, v. R.R., a Minor, etc., et al., Defendants and Appellants.

No. B207869.

Court of Appeals of California, Second District, Division One.

March 15, 2010.

Rex Julian Beaber for Defendants and Appellants.

Robert S. Gerstein; and Jennifer L. Lynch for Plaintiffs and Respondents.

OPINION

MALLANO, P. J.

A 15-year-old high school student was pursuing a career in entertainment and maintained a Web site for that purpose. Several of his fellow students posted messages at the Web site, making derogatory comments about his perceived sexual orientation and threatening him with bodily harm.

The aggrieved student and his parents filed this action against the other students and their parents, alleging a statutory claim under California's hate crimes laws (Civ. Code, §§ 51.7, 52.1) and common law claims for defamation and intentional infliction of emotional distress. In response, one of the student-defendants and his parents filed a special motion to strike, contending that the action was a "strategic lawsuit against public participation" (SLAPP) (Code Civ. Proc., § 425.16; all undesignated section references are to that code unless otherwise indicated). The student-defendant had posted a message stating in part: ". . . I want to rip out your fucking heart and feed it to you. . . . I've . . . wanted to kill you. If I ever see you I'm . . . going to pound your head in with an ice pick. Fuck you, you dick-riding penis lover. I hope you burn in hell." The trial court denied the anti-SLAPP motion on the ground that the lawsuit did not arise out of a statement made in connection with a "public issue." (§ 425.16, subds. (b)(1), (e)(3).) Defendants appealed.

We affirm because defendants did not make the requisite showing that plaintiffs' complaint is subject to the anti-SLAPP statute. In particular, defendants did not demonstrate that the posted message is protected speech. Further, defendants contend the message was intended as "jocular humor." Assuming the message was a "joke"—played by one teenager on another— it does not concern a "public issue" under the statute. (See § 425.16, subds. (b)(1), (e)(3).)

I BACKGROUND

The following allegations and evidence are taken from the pleadings and the papers submitted in the trial court with respect to the anti-SLAPP motion.

D.C., the student-plaintiff, attended Harvard-Westlake School (Harvard-Westlake), a private educational institution in Los Angeles. D.C. filed this action against several other students through a guardian ad litem, his father. D.C.'s father and mother also pleaded claims in their own right. (We will refer to D.C. and his parents collectively as plaintiffs.) Plaintiffs also named as defendants the parents of each student-defendant; the parents were sued as guardians ad litem and individually for their child's conduct (see Civ. Code, § 1714.1). (We refer to the student-defendants and their parents collectively as defendants.) Harvard-Westlake, its board of directors, and three school employees were also sued. The claims against them were arbitrated pursuant to an arbitration provision in the school's enrollment contract. (See D.C. v. Harvard-Westlake School (2009) 176 Cal.App.4th 836 .)

A. Complaint

Plaintiffs commenced this action on April 25, 2005. A first amended complaint (complaint) was filed on June 8, 2005, and alleged as follows.

While a student, D.C. pursued a career as a singer and an actor. He had a record album with a planned release date, had broadcast a song worldwide via satellite radio, and had played the leading role in a feature film presented at an internationally acclaimed film festival. He had also toured under the auspices of a nationally recognized radio network.

D.C. maintained a Web site to promote his entertainment career. The site allowed any member of the public to post comments in a "guestbook." Several students at Harvard-Westlake went to the Web site and posted threats against D.C. and made derogatory comments about him. One post read, "Faggot, I'm going to kill you." Another read, "[You need] a quick and painless death." One student wrote, "Fuck you in your fucking fuck hole." Another commented, "Fucking ass clown. Nigga what?" One post announced, "You are now officially wanted dead or alive." Another threatened, "I will personally unleash my manseed in those golden brown eyes."

The students who posted the threats sought to destroy D.C.'s life, threatened to murder him, and wanted to drive him out of Harvard-Westlake and the community in which he lived. They were motivated by a misperception of D.C.'s sexual orientation. When D.C.'s father read the threats at the Web site, he immediately informed Harvard-Westlake of the problem, believing that some of its students were responsible. The father also contacted the Los Angeles Police Department (LAPD), which, in turn, notified the Federal Bureau of Investigation.

On the advice of the police, D.C. withdrew from Harvard-Westlake. He and his family moved to Northern California, where he went to a different educational institution. The Harvard-Westlake student newspaper, The Chronicle, ran at least two articles on the matter. One article disclosed D.C.'s new residential location and the name of the school he was attending. The article also disclosed that posts at the Web site had referred to D.C. as a "faggot." Harvard-Westlake did not suspend or expel any of the students who admitted posting the threats.

As a consequence of defendants' conduct, plaintiffs suffered personal and emotional injury, loss of income, the payment of medical expenses, the cost of moving, expenses for traveling back and forth from their new residential location to Los Angeles in order to support D.C.'s professional career commitments, and the related cost of housing while staying in Los Angeles.

The complaint contained five causes of action against defendants, only three of which are relevant here. First, plaintiffs alleged that defendants had violated their right under the state hate crimes laws to be free from "threat[s] of violence" motivated by perceived sexual orientation. (Civ. Code, § 51.7, subd. (a); see id., 52.1.)¹ Second, in a defamation claim, plaintiffs asserted that defendants had libeled D.C. by calling him a homosexual. Third, plaintiffs alleged a claim for intentional infliction of emotional distress, contending that defendants' conduct was outrageous and had caused plaintiffs to suffer severe emotional distress. All three of these causes of action were based on the posted threats and their effect on plaintiffs.

Plaintiffs named as defendants six students and their parents. Among those sued were R.R., a student, and his parents (collectively the R.'s).

B. Anti-SLAPP Motion

On July 20, 2005, the R.'s filed an anti-SLAPP motion, contending that R.R.'s posted message was protected speech or, more specifically, a written statement or writing made in a public forum in connection with an issue of public interest. (See § 425.16, subd. (e)(3).) The motion was supported by several declarations, including ones from R.R. and his father. In opposing the motion, plaintiffs relied primarily on a declaration from D.C.'s father. Both sides submitted declarations from law enforcement personnel.

R.R. posted the following message on D.C.'s Web site: "Hey [D.C.], I want to rip out your fucking heart and feed it to you. I heard your song while driving my kid to school and from that moment on I've . . . wanted to kill you. If I ever see you I'm . . . going to pound your head in with an ice pick. Fuck you, you dick-riding penis lover. I hope you burn in hell."

Posts by other students included: (1) "I hate fags. . . . diefags@ yahoo.com. . . . gays are evil.com. . . . Hey fucker. . . . You are real gay"; (2) "Faggot, I'm going to kill you"; (3) "You are an oversized faggot. . . . I just want to hit you in the neck—hard. . . . [G]o to the 405 [freeway] bridge and jump"; (4) "I hate fags. . . . You need to be stopped"; (5) "I am looking forward to your death"; and (6) "Not only are you a massive fagmo, but must absolutely quit showing your face at my school. You are now officially wanted dead or alive."

1. Declaration of D.C.'s Father

By way of background, D.C.'s father explained: "[D.C.], without exception, uses the pseudonym `Danny Alexander' in his entertainment career.

". . . Nowhere on the subject website . . . nor in any publicity material, album packaging, or on film credits has [D.C.] been identified by his legal name.

". . . Like many other aspiring entertainers, [D.C.] deliberately chose to use a stage name precisely so he could enjoy a `dual life,' one which afforded him the luxury of anonymity outside the entertainment industry. [¶] . . . [¶]

". . . Of the thirty-four (34) outrageously offensive original postings made on [D.C.'s Web site] that are the subject of this lawsuit, twenty-three (23) falsely identify [D.C.] as a homosexual.

". . . I am informed, believe, and thereon allege that those twenty-three (23) postings regarding sexual preference originated from no less than ten (10) distinct computer systems.

". . . The website . . . was permanently removed from the Internet. . . the same day the postings were discovered. [¶] . . . [¶]

". . . The LAPD disagreed with [a school administrator's] `intuition' that the school posed no danger to [D.C.] and therefore advised me to have [D.C.] stay home from school until a thorough investigation had been completed. [D.C.] did attend a PSAT exam at the school with great trepidation and only after I discussed the matter with the administration and stayed on site to watch him throughout the testing without causing any disturbance to students sitting for the college entrance examination. Other than that one examination [D.C.] did not return to the school due to fear for his life. If the threats were nullified, it would have been our preference to have him continue to...