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Eva Maria Bojorquez Valdez v. Maya Publishing Group LLC D/B/A Tvnotas

June 15, 2011

EVA MARIA BOJORQUEZ VALDEZ,
PLAINTIFF,
v.
MAYA PUBLISHING GROUP LLC D/B/A TVNOTAS,
DEFENDANT.



The opinion of the court was delivered by: M. James LorenzUnited States District Court Judge

ORDER DENYING DEFENDANT'S MOTION TO STRIKE

Plaintiffs filed a defamation action in state court against Defendant Maya Publishing Group LLC. The action was removed to this court based on diversity jurisdiction pursuant to 28 U.S.C. Sections 1332 and 1441. Plaintiffs alleged they were defamed in two articles published by Defendant wherein they were portrayed as abandoning their seriously ill mother and committing a number of crimes against her. Defendant filed a motion to strike pursuant to Section 425.16 of California Code of Civil Procedure. Plaintiffs filed an opposition. For the reasons which follow, Defendant's special motion to strike is DENIED.

Eva Maria Bojorquez Valdez, Cecilia del Carmen Bojorquez Valdez, Clelia Cristina Bojorquez Valdez and Maria del Pilar Guardiola Valdez ("Eva Maria," "Cecilia," "Cristina" and "Maria del Pilar,"*fn1 respectively; collectively "Plaintiffs") are daughters of a popular Mexican singer Chayito Valdez ("Chayito"). On November 17 and 24, 2009 Defendant, who publishes TV Notas USA, a weekly Spanish-language magazine focusing on Latin American personalities, published articles which included allegedly defamatory statements. In 1985 Chayito suffered an automobile accident which left her confined to a wheelchair. In 2003 she suffered a brain injury, and has been in near vegetative state hospitalized at Sharp Coronado Hospital since then. Chayito, her medical condition and relationship with her daughters have been the subject of Spanish-language media during this time, including five articles and a television broadcast prior to Defendant's two November 2009 articles. Defendant's November 2009 articles state, among other things, that some or all of the Plaintiffs kidnaped Chayito, sequestered her at the hospital and then abandoned her, that they stole Chayito's money, truck, jewelry and real estate, and that they hit her. Plaintiffs filed a complaint alleging that these statements were defamatory.

Defendant moved to strike the first amended complaint pursuant to California Code of Civil Procedure Section 425.16 ("Anti-SLAPP Motion"). California legislature enacted section 425.16 ("Anti-SLAPP Law") to stem "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." Cal. Code Civ. Proc. § 425.16(a). Based on policy considerations, section 425.16 is construed broadly. Id. Under the statute,[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 the 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(b)(1). Defendant argues the action is barred because it is baseless and arises out of communications in furtherance of its constitutional right to free of speech in connection with an issue of public interest.

Ruling on an anti-SLAPP motion entails a two-step process: First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant's burden is to demonstrate that the act or acts of which the plaintiff complains were taken in furtherance of the defendant's right of petition or free speech . . .. If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. Equilon Enters, LLCv.Consumer Cause, Inc., 29 Cal.4th 53, 67 (2002) (internal quotation marks, citations and brackets omitted).

With respect to the "threshold showing," the Anti-SLAPP Law protects four categories of See Cal. Code Civ. Proc. § 425.16(e). Defendant, a magazine publisher, argues that this case fits into the third category, which applies to "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.". § 425.16(e)(3). Accordingly, Defendant must show that the articles were published in connection an issue of public interest. See Hilton v. Hallmark Cards, 599 F.3d 894, 903 (9th Cir. 2010), citing Equilon Enters, 29 Cal.4th at 67.

Chayito is a popular Mexican singer. (First Am. Compl. at 3.) Nevertheless, Plaintiffs dispute that the articles relate to an issue of public interest because "at issue . . . is essentially gossip" about how Plaintiffs allegedly mistreated her, and because this is a private family matter. (Opp'n at 6.) Plaintiffs suggest that an issue of public interest must affect the community in a manner similar to that of a governmental entity, which is not the case here. (Opp'n at 3-5.) This argument has been rejected by California Supreme Court. Briggs v. Eden Council for Hope and Opportunity, 19 Cal.4th 1106, 1116 (1999).

Although "issue of public interest" is not defined in the statute and "[t]he California Supreme Court has not clearly established what constitutes an issue of public interest," it has insisted on closely following the terms of the statute, including its preamble, which calls for a broad construction. Hilton, 599 F.3d at 905-06, citing Equilon Enters, 29 Cal.4th at 59-60. The decisions of California Courts of Appeal have not adhered to the same standard for defining "an issue of public interest." Hilton, 599 F.3d at 906-08. However, the distinctions among California Appellate Districts do not affect the outcome of this case.

The more restrictive standard, urged by Plaintiffs, was established in Weinberg v. Feisel, 110 Cal. App. 4th 1122 (3rd Dist. 2003). It involves several guiding principles:First, "public interest" does not equate with mere curiosity. Second, a matter of public interest should be something of concern to a substantial number of people. Thus, a matter of concern to the speaker and a relatively small, specific audience is not a matter of public interest. Third, there should be some degree of closeness between the challenged statements and the asserted public interest; the assertion of a broad and amorphous public interest is not sufficient. Fourth, the focus of the speaker's conduct should be the public interest rather than a mere effort to gather ammunition for another round of private controversy. Finally, those charged with defamation cannot, by their own conduct, create their own defense by making the claimant a public figure. A person cannot turn otherwise private information into a matter of public interest simply by communicating it to a large number of people. at 1132-33 (internal quotation marks, brackets, ellipsis and citations omitted); see also Terryv. Davis Comm. Church, 131 Cal. App. 4th 1534, 1546-47 (3rd Dist. 2005); McGarry v.Univ. of San Diego, 154 Cal. App. 4th 97,110 (4th Dist. 2007).

It is undisputed that Chayito is a popular singer with many fans. Her condition, accessibility, likelihood that she may again perform, and the effect the relationship with her daughters has on these issues are of concern to them. See, e.,g., McGarry, 154 Cal. App. 4th at109 & 110 (public interest found because college football coach occupies high-profile position in city's athletic community). Prior to the allegedly objectionable articles, four other magazine articles and a television program about Chayito covered her medical situation and alleged mistreatment by her daughters.*fn2 There is a close relationship between the public's interest in Chayito and her plight on one hand, and the articles about how she is doing and how this is affected by her daughters on the other hand. There is no indication in the record that the two articles were published as an "effort to gather ammunition for another round of private controversy." Weinberg, 110 Cal. App. 4th at 1132-33. Instead, they appear to be a response to the public interest in a long-lasting controversy. Accordingly, Defendant met the threshold requirement that the articles be published in connection with an issue of public interest. Plaintiffs' claim therefore arises from Defendant's activity protected by the First Amendment.

Defendant, however, has only passed the threshold. "Only a cause of action that satisfies prongs of the anti-SLAPP statute -- i.e., that arises from protected speech or petitioning and lacks even the minimal merit -- is a SLAPP, subject to being stricken under the statute."Navellier v. Sletten, 29 Cal.4th 82, 89 (2002). "Probability of prevailing on the claim," the second step of the anti-SLAPP inquiry, Equilon, 29 Cal.4th at 67, "requires only a minimum level of sufficiency and triability [and] is often called the minimal merit prong." Mindy's Cosmetics, Inc. v. Dakar, 611 F.3d 590, 598 (9th Cir. 2010) (internal quotation marks and citations omitted); see also Navellier, 29 Cal. 4th at 89, 93-94, 95.

To establish minimal merit, the plaintiff need only state and substantiate a legally sufficient claim. Put another way, the plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. [¶] While a court's evaluation of a claim under the anti-SLAPP statute has been called a summary-judgment-like procedure, a motion to strike does not impose an initial burden of production on the moving defendant. The applicable burden is much like that used in determining a motion for non-suit or directed verdict, which mandates dismissal when no reasonable jury could find for the plaintiff. The court does not weigh the credibility or comparative probative strength of competing evidence, but should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim.

Mindy's Cosmetics, 611 F.3d at 598-99 (internal quotation marks and citations omitted).

Defendant initially argued that Plaintiffs could not show probability of prevailing on a defamation claim because the two articles did not contain any provably false factual assertions but only opinions. (Def.'s Mem. of P.&A. at 14 & 16-17.) It has since withdrawn this argument. (See Reply at 7.) Defendant admits that the statements in the articles that Plaintiffs stole from their mother and hit her constitute factual statements that are potentially actionable. (Reply at 7; see also Def.'s Exh. G & J.) The first element of defamation, that the ...


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