Weinberg v. Feisel

• Decision Date: 25 July 2003
• Docket Number: No. C041087.,C041087.
• Citation: 2 Cal.Rptr.3d 385,110 Cal.App.4th 1122
• Parties: Alan WEINBERG, Plaintiff and Respondent, v. Duane H. FEISEL, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

2 Cal.Rptr.3d 385

110 Cal.App.4th 1122

Alan WEINBERG, Plaintiff and Respondent, v. Duane H. FEISEL, Defendant and Appellant.

No. C041087.

Court of Appeal, Third District.

July 25, 2003.

Certified for Partial Publication.^*

Horvitz & Levy, David S. Ettinger, Encino, Karen M. Bray; Sinclair & Hill and Craig A. Sinclair, Redding, for Defendant and Appellant.

Dennison, Bennett & Press and James H. Goudge, Woodland Hills, for Plaintiff and Respondent.

SCOTLAND, P.J.

Plaintiff Alan V. Weinberg brought this action against defendant Duane H. Feisel for libel, slander, and intentional infliction of emotional distress after defendant told others that plaintiff had stolen a valuable collector's item from him. Defendant appeals from the trial court's order denying his special motion, made pursuant to the so-called anti-SLAPP statute (Code Civil Proc., § 425.16), to strike the causes of action against him. (Further section references are to the Code of Civil Procedure unless otherwise specified.)¹

The Legislature enacted the anti-SLAPP statute when it perceived "a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances." (§ 425.16, subd. (a).) Under the statute, a cause of action "that arises from protected speech or petitioning and lacks even minimal merit" should be stricken. (Navellier v. Sletten (2002) 29 Cal.4th 82, 89, 124 Cal.Rptr.2d 530, 52 P.3d 703.) Defendant contends this is such a case.

Two of the categories of conduct to which the anti-SLAPP statute applies are "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" and "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), italics added.)

Among other things, defendant claims that the causes of action against him "arise from [his] discussion of criminal activity, which is `an issue of public interest' under the [anti-SLAPP] statute." In defendant's view, warning others of a suspected theft, so they can secure their property from the alleged wrongdoer, serves the public interest in deterring crime and protecting the interests of others who could suffer such harm. Moreover, he argues, the warning "could encourage others to come forward with information so that [plaintiff] could be reported to and prosecuted by the authorities." Thus, defendant concludes, "[p]roperly construed, the anti-SLAPP statute encompasses as a public issue [his] communications concerning [defendant's] suspected criminal activity."

We disagree and shall affirm the order denying the special motion to strike. As we will explain, defendant did not report his suspicions to law enforcement, and there is no evidence that he intended to pursue civil charges against plaintiff. Rather, it is alleged that defendant began a private campaign, so to speak, to discredit plaintiff in the eyes of a relatively small group of fellow collectors. Since the record does not support a conclusion that plaintiff is a public figure or that he has thrust himself into any public issue, defendant's accusations related to what in effect was a private matter. Under the circumstances, the fact that defendant accused plaintiff of criminal conduct did not make the accusations a matter of public interest.

Simply stated, causes of action arising out of false allegations of criminal conduct, made under circumstances like those alleged in this case, are not subject to the anti-SLAPP statute. Otherwise, wrongful accusations of criminal conduct, which are among the most clear and egregious types of defamatory statements, automatically would be accorded the most stringent protections provided by law, without regard to the circumstances in which they were made—a result that would be inconsistent with the purpose of the anti-SLAPP statute and would unduly undermine the protection accorded by paragraph 1 of Civil Code section 46, which includes as slander any false and unprivileged communication charging a person with a crime, and the California rule that false accusations of crime are libel per se (Civ.Code, § 45a; 5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 482, p. 566).

Because defendant failed to demonstrate that the challenged causes of action arose from protected activity, the trial court properly denied defendant's special motion to strike.

FACTUAL BACKGROUND

The following allegations are taken from declarations and exhibits submitted to the trial court with respect to the motion to strike.

Plaintiff and defendant are aficionados of token collecting. Token collectors have an association known as the National Token Collectors' Association, which publishes a monthly newsletter called Talkin' Tokens. The association has approximately 700 members. There also are local associations, including the Western States Token Society, which has about 50 members. Plaintiff has been a member of the national association since its inception in 1997, and was a member of predecessor associations for 20 to 25 years before that. At relevant times, defendant was a member and secretary of the national association and was president of the western states association.

From time to time, local associations put on token shows. The dispute that gave rise to this litigation arose at a token show in Oakland in 1998 or 1999, where defendant showed his "good-for" encased coin collection to plaintiff. (A "good-for" encased coin appears to be a token that encases an actual coin. The tokens were issued by merchants, who would exchange the identified "good-for" items for the token.) Defendant later discovered that his good-for encased cent from Bob Harper's Bank Exchange Saloon, of San Angelo, Texas, was missing, and he concluded that plaintiff had stolen it. Defendant confronted plaintiff with the disappearance of the token, but plaintiff denied he has ever stolen anything from defendant. Communications between the parties failed to resolve the issue.

Defendant began what can be characterized as a campaign to oust plaintiff from the token collecting avocation. He published an advertisement in the July 2000 issue of Talkin' Tokens, in which he described the disappearance of his token and said that it was discovered to be missing shortly after it was shown to another collector. In the advertisement, defendant did not identify plaintiff as the culprit; however, he later did so in written and oral communications with other token collectors.

After the advertisement had run, defendant sent a letter to over 20 collectors. Among other things, he identified plaintiff as the collector who took defendant's token. He also said that others have had similar happenings or have other concerns or questionable experiences involving plaintiff. Defendant alleged that plaintiff engages in misrepresentations, misstatements of fact, and outright lies, and he describes plaintiff as "a master of misinformation." He asked, "[w]ho among you will help to `bell the cat?'"²

In November 2000, the western states association was preparing to put on its Western States Token Society Token Jamboree. Defendant, as president and jamboree chairman, obtained a vote of the membership purporting to exclude plaintiff from attending the jamboree or any of its related events. From the record, it appears defendant obtained that vote without giving plaintiff notice or any opportunity to present his side of the dispute. Defendant notified plaintiff by mail that he would be subject to arrest and prosecution if he attempted to attend.

In the December 2000 issue of Talkin' Tokens, defendant published another statement. He expressed dismay that a token collector colleague would steal from him, described the matter as an ongoing saga of unpleasantness, and said he expected to have more to report as further information was obtained from other apparent victims of this same individual.

In January 2001, defendant sent another letter to other token collectors, asserting that plaintiff is a thief and chronic liar. Defendant stated: "I believe that he is `feeling the heat' right now. My tactics have been to try to `get into his head' and let him know that more information would be forthcoming, without saying what that information might be, just to keep him on edge and guessing what might be next." He reported his success in having plaintiff excluded from the western states token jamboree, suggested that efforts be made to exclude plaintiff from other token shows, and said he had already contacted one association, identified as NW TAMS, in that regard. Defendant's proposed ideas for further action included an advertisement to be printed in association journals that could be used as handouts at token shows, buttons showing plaintiffs initials with a slash through them to be worn at token shows, coordinated submission of individual letters to plaintiff in which "[t]he writer could say almost whatever he wanted (no threats, however) without fear of any legal implications," and simultaneous submission of ethics complaints to the national association where ethics violations have occurred.³

Plaintiff is a retired Los Angeles police officer. Sergeant Don Keith, as retirement coordinator, serves as the department's liaison with retired officers. Sergeant Keith's duties include issuance of identification cards and concealed weapon permits, the determination whether concealed weapon permits should be renewed, and investigation of alleged abuse of identification cards. In February 2001, Keith advised plaintiff that defendant had contacted him. Defendant purportedly said that plaintiff has a violent temper, that people were in fear for their lives if plaintiff attended an upcoming token show in Dublin, and that plaintiff had been...