Alameda Superior Court Trial Judge: Honorable Jo-Lynn Q. Lee (Alameda County Super. Ct. No. RG06274673)
The opinion of the court was delivered by: Richman, J.
CERTIFIED FOR PUBLICATION
Plaintiff Hardev Singh Grewal, a 73-year-old interpreter for the Alameda County Superior Court and a 39-year resident of Fremont, is a well-known member of the Sikh Temple, San Francisco Bay Area, who, he alleged, "enjoyed a good reputation . . . in the Temple and in his occupation." On two occasions in 2005 the Punjab Times published calumnious statements about plaintiff, and in 2006 he filed suit for defamation. The suit named several defendants, including Amolak Singh Jammu and A.B. Publication, Inc., the editor and publisher of the Punjab Times (when referred to collectively, the Jammu defendants). Another article followed, this stating that plaintiff referred to the Temple school as a "madrassa," a training school for terrorists and students of the Taliban. This caused an amended complaint, and plaintiff's suit came to include four causes of action for libel.
The Jammu defendants filed a special motion to strike (Anti-SLAPP) these causes of action, a motion that was noteworthy in several respects, in that it was filed: (1) almost three years after plaintiff's original complaint; (2) despite that the Jammu defendants had filed verified answers to plaintiff's earlier complaints containing identical causes of action; and (3) despite that an earlier anti-SLAPP motion by three other defendants had been denied in an order expressly holding that plaintiff had a probability of prevailing. Beyond all that, the motion was scheduled to be heard five days before the date on which the case had long been set for trial.
Defendants' moving papers--a voluminous 206 pages, not including a request for judicial notice of thousands of pages of three Alameda County court files and the 54-page opinion by this court in Singh v. Singh (2004) 114 Cal.App.4th 1264 (Singh)--argued that the causes of action involved an "issue of public interest." Plaintiff's opposition argued otherwise, an opposition that also showed that in any event there is a "strong likelihood that he will prevail on his claims. . . .[¶] . . . . The published statements are provably false, caused plaintiff damages and defendants failed to use reasonable care in publishing the statements." That, plaintiff claimed, was "established." Defendants' reply did not disagree, acknowledging that "by denying or refuting the statements [that] plaintiff has taken issue with, at best he has merely put them at issue."
The trial court entered a detailed order concluding that the first three causes of action did not involve an issue of public interest and that plaintiff demonstrated a likelihood of prevailing on the fourth. The Jammu defendants appealed, as the anti-SLAPP statute gives them the right to do.
We review the matter de novo, and we affirm, doing so without adding to the burgeoning California jurisprudence as to what is, or is not, an "issue of public interest." For, such issue or not, plaintiff has met his burden under the anti-SLAPP statute--as the Jammu defendants essentially conceded. And we affirm with the observation that, however efficacious the anti-SLAPP procedure may be in the right case, it can be badly abused in the wrong one, resulting in substantial cost--and prejudicial delay. It is time for plaintiff's case to be heard on the merits. Perhaps it is also time for the Legislature to revisit whether a defendant losing an anti-SLAPP motion has an absolute right to appeal.
The Sikh Temple and Its Governance
To put the matter in context, we begin with some historical background, much of which is from our opinion in Singh, supra, 114 Cal.App.4th 1264, which background begins in 1977, when the Sikh Temple was incorporated as a non-profit religious corporation. (Id. at p. 1269.) Plaintiff was active in the founding of the Temple and in the early years was involved in its management, until 1983. Plaintiff has not been involved in the management of the Temple since 1984, though he remains a regular member and attends religious services there.
The early years after incorporation were apparently uneventful, but things began to change in the late 1980s, as issues arose concerning governance of the Temple, which issues continued for some years. This ultimately led to the first of several lawsuits, filed in August 1996. This lawsuit quickly settled, "when the parties agreed to a court-supervised election of the Supreme Council. That election occurred on December 22, 1996, and resulted in the election of five Supreme Council members." (Singh, supra, 114 Cal.App.4th at p. 1270.) In 1999, one member of the Supreme Council was involuntarily removed pursuant to the bylaws, and one Mota Singh was nominated and selected as a replacement by the congregation. Other than the filling of this vacancy, no elections for the Supreme Council were held between December 1996 and March 2002. (Id. at pp. 1270-1271.)
Meanwhile, in December 1998, a second lawsuit was filed, seeking declaratory and injunctive relief, and a receivership. Plaintiffs in that case "complained that there was an unlawful cancellation of a general election scheduled for December 20, 1998, by the defendants named in that case and the assumption of office by a new board of directors on December 6, 1998, without the benefit of an election." (Singh, supra, 114 Cal.App.4th at p. 1271.) This second lawsuit proceeded to a court trial in 1999.
Sometime later, issues apparently arose in connection with a March 2002 election. Following various meetings, one group remained as the Supreme Council and "refused to vacate," which led to lawsuit number three, filed in April 2002, the lawsuit that gave rise to our 2004 decision in Singh. (Singh, supra, at p. 1272.)
Apparently three lawsuits had no calming influence on some Temple members, and elections continue to generate intense feelings. And it was allegedly in connection with an upcoming January 2006 election that the Punjab Times published the materials leading to plaintiff's lawsuit here.
The complaint in issue is plaintiff's second amended complaint, filed on February 23, 2009, which we discuss in detail below. Before doing so, we recount some earlier developments in the case, many of which the parties have not discussed but which we piece together from entries in the register of actions and miscellaneous pleadings and papers put before us as exhibits or in requests for judicial notice.
Plaintiff's original complaint was filed on June 14, 2006, and named seven defendants: Devinder Singh, Sukhdev Singh, Avtar Singh, Harjinder Singh, Palwinder Singh, and the two Jammu defendants. The complaint alleged three causes of action, the first two for libel against all defendants, the third for slander against the five defendants with the surname Singh. The libel claims were based on two publications in the Punjab Times--plaintiff calls them articles, the Jammu defendants call them advertisements--one on June 18, 2005, and one on December 31, 2005. These claims remained in plaintiff's complaints throughout.
On March 2, 2007, defendants Sukhdev Singh, Avtar Singh, and Palwinder Singh filed an answer. Twelve days later, these same defendants filed a special motion to strike. That motion came on for hearing before the Honorable Winfred Smith who, by order dated April 30, 2007, denied the motion, concluding that "Plaintiff . . . has established a probability that he will prevail on his claims. (See [Code of Civil Procedure section] 426.16(b)(1).)[*fn1 ] Put another way, plaintiff has demonstrated by competent evidence a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by him is credited. (See Wilson v. Parker [, Covert & Chidester] (2002) 28 Cal.4th 811, 821.)"*fn2
Meanwhile, and of significance here, on April 4, 2007 the Jammu defendants filed a verified answer to plaintiff's complaint.
In May 2007 plaintiff filed a motion for leave to file an amended complaint, which was granted, and a first amended complaint (FAC) was filed on June 29, 2007. The FAC added Gurmeet Singh Khalsa as a defendant, and alleged five causes of action, the same three as in the original complaint, a second libel claim based on the December 31, 2005 article, and an additional slander claim against Khalsa. As before, the Jammu defendants filed a verified answer, this time to a complaint that contained three of the four causes of action they would later attack by their motion to strike.
This answer was filed on August 10, 2007, and from that point on the register of actions contains references to substitutions of attorneys; a motion to be relieved as counsel (June 24, 2008); numerous case management statements; and an order of October 20, 2008 that the case was set for "Civil Jury Trial 7/6/2009." A flurry of trial preparation-type motions followed, and then, for reasons unexplained in the record, on February 23, 2009, a "Second Amended Complaint [was] filed." This is the complaint in issue here.
The second amended complaint (SAC) named the same eight defendants as in the FAC: the five Singhs, the two Jammu defendants, and Khalsa. The SAC began with plaintiff's description of himself: "employed as a Court Interpreter for the Superior Court of California, with his place of employment in the County of Alameda. Plaintiff resides in the City of Union City, County of Alameda, California, and has resided there for 38 years. Plaintiff is also a well-known member of the Sikh Temple . . . (Temple). At all pertinent times, plaintiff has enjoyed a good reputation generally, in the Temple and in his occupation."
The SAC went on to identify the defendants, alleging this about the Jammu defendants: that A.B. Publication is an Illinois corporation, doing business in Union City; that A.B. Publication publishes and circulates a weekly publication called the Punjab Times, which "has a wide circulation in California and other states, and is read by a great number of California persons and citizens of the areas in which it is published and circulated"; and that Jammu was the publisher and editor of the Punjab Times. While the SAC alleged seven causes of action, only four were against the Jammu defendants and thus pertinent here, and we describe only them:
First Cause of Action - libel based on a June 18, 2005 article in the Punjab Times, attached as an exhibit. The article was described as "libelous on its face because, among other things, it accused plaintiff of committing a serious crime, of being unfit as a president of the Temple, of being divisive, dishonest and lacking in respect for the Sikh religion and baptism, and lacking in humility and integrity. Specifically, it stated that plaintiff admittedly went into hiding from the Temple in 1984, and only visited the Temple secretly. . . . The article stated that plaintiff was against the Sikh religion, that he sided with forces out to destroy the Sikh nation, and that he does not believe in Sikh baptism. The article stated that plaintiff joined forces with a certain group in the forcible takeover of the Temple in 1996, and that thereafter he betrayed that group by joining forces with another opposing group. The article stated that plaintiff disrespected the Rehat Maryada Handbook (the Sikh Code of Conduct) by swinging and slamming it hard on the floor, and quipping: 'what is the use of keeping it now?' "
Second Cause of Action - libel based on a December 31, 2005 article in the Punjab Times, also attached as an exhibit. This article, too, was "libelous on its face because, among other things, it accused plaintiff of committing the crimes of theft, embezzlement and tax fraud, of being unfit as a president of the Temple, of being divisive, dishonest and lacking in respect for the Sikh religion and baptism . . . . That article also suggested that plaintiff . . . desecrated the Sikh religion and Sikh baptism by precluding baptism from taking place at the Temple, permitting alcohol to be consumed at the Temple and by claiming that he would never marry his daughter to a Sikh. . . . The same article claimed that plaintiff used to improperly take Temple cash offerings home for his personal tax- deduction purposes; and that he used to charge members of the Temple for the car-parking fees he incurred during his personal errands to San Francisco."
Third Cause of Action - libel, also based on the December 31, 2005 article, which is "libelous on its face because, among other things, it accused plaintiff, a Sikh, of being unscrupulous, vice-indulgent, and devoid of the Sikh way of life. Furthermore, the article stated that plaintiff exhibited total contempt for the Sikh's golden principles, and that he swung the code copy of the Rehat Maryada Handbook (the Sikh Code of Conduct), 'slammed it hard on the floor, and retorted "now, what is the need for this for us?" ' "
We pause to note that the first and second causes of action in the SAC are identical to those in the original complaint, and that the third cause of action is identical to that in the FAC. They were thus two of the causes of action as to which Judge Smith held that plaintiff had a probability of prevailing--and three of the causes of action to which the Jammu defendants had filed verified answers.
Sixth Cause of Action - libel based on a May 24, 2008 article in the Punjab Times, also attached as an exhibit. This article is entitled "Very Serious Notice Taken of Hardev Grewal's Statement About Guru Granth Sahib," and it is, plaintiff alleged, "libelous on its face because, among other things, . . . the article claimed that plaintiff, a Sikh, had described a Sikh school operated on the premises of the Fremont Sikh Temple . . . as a training ground for fundamentalist terrorists. The article also claimed that plaintiff had described the students of the same school as the . . . same terrorist organization reportedly responsible for the September 11, 2001 terrorist attacks on the World Trade Center in New York. Specifically, the articles stated that Plaintiff and his associates had described the Khalsa School operated on the Temple premises as a 'madrassa' (an Urdu term for School of Islamic Instruction) and its students as the 'Talibans.' . . ."
On April 15, 2009 the Jammu defendants filed their verified answer to the SAC, and seven days later the anti-SLAPP motion at issue here.
On April 22, 2009, 58 days after the SAC was filed, the Jammu defendants filed a "Code of Civil Procedure § 425.16 Special Motion to Strike (Anti-SLAPP)"; it was set for hearing on July 1, 2009, five days before the scheduled July 6 trial date.*fn3 The motion to strike was supported by a 15-page memorandum of points and authorities, nine declarations (including one of counsel), and a request for judicial notice of the three Alameda County Superior Court files from the cases mentioned above and our decision in Singh, supra, 114 Cal.App.4th 1264.*fn4
The points and authorities have no argument headings, so the Jammu defendants' precise argument(s) is (are) not easily determined. Indeed, the points and authorities--or, for that matter, the motion itself--do not even specify which of the four descriptions in section 425.16, subdivision (e) supposedly encompasses plaintiff's lawsuit. However, various assertions in the points and authorities appear in boldface, including this: "An issue of public interest comes under the anti-SLAPP suit protections of C.C.P. §425.16 simply if the public is interested. The issue need not be significant. The Sikh Temple election with a membership of over 8,216 held a hotly contested ...